Temengil v. Trust Territory of the Pacific Islands
Temengil v. Trust Territory of the Pacific Islands
Opinion of the Court
DECISION
TABLE OF CONTENTS
Page
I. Facts. 6
II. Standards of Review . 8
III.The Evolution of United States Administration of the Trust Territory. 9
IV. Trusteeship Agreement Claims . 14
A. People of Spain's Comity Docterinend the Covenant1s Elimination of High Court Jurisdiction in the NMI over Actions Filed on or After January 9, 1978. . 16
1. The Covenant and its Implementation.17
2.' '48 U.S.C. § 1681(a) 21
3. Conclusion.25
B. The Federal Agency Status of the Trust Territory Government and the High Commissioner for Purposes of Determining Liability for Trusteeship Agreement Violations.26
C. Rulings on the Motions
1. Trust Territory Government and the High Commissioner . . . U> 35
2. The United States, the Interior Department and the Interior Secretary . 38
a. Monetary Claims . 43
b. Non-Monetary Claims .... 45
V. Civil Rights Acts Claims Against the Trust Territory Government and the High Commissioner
A. Introduction 48
B. § 1981 Claims
1. Jurisdiction: The Applicability of § 1981, Title VI and Title VII to the Trust Territory Government and the High Commissioner Through the Operation of Covenant § 502(a) (2) . . . .52
a. Statutory Construction Principles . .52
b. Application of the Statutory Construction Principles above to Covenant § 502(a)(2) .58
2. Issues Relevant to Defendants' Summary Judgment Motion . : . 65
C. § 1983 Claims.. 69
1. Applicability of the Equal Protection and Due Process Guarantees of the Fifth and Fourteenth Amendments to the United States Constitution to the Trust Territory Government and the High Commissioner. 70
2. The High Commissioner's Promulgation of the Trust Territory Headquarters Salary Plan As Action Under Color of Territorial Law for Purposes of § 1983
a. Action Under Color of Territorial Law.. 74
b. The Trust Territory of the Pacific Islands as a "Territory" for Purposes of § 1983 . 75
3. The Trust Territory Government and the High Commissioner as Suable "persons" under § 1983 . 81
D. Title VI Claims 82
E. Title VII Claims 84
VI. Civil Rights Acts Claims Against The United States, The Interior Department And The Interior Secretary . 86
A. § 1981 Claims 86
B. § 1983 Claims 87
C. Title VI Claims 87
D. Title VII Claims 88
VII. Trust Territory Code Bill of Rights Equal Protection Claims
A. Claims Against the Trust Territory Government and the High Commissioner . 89
B. Claims Against the United States, the Interior Department and the Interior Secretary . 90
VIII. Conclusion 91
Plaintiffs represent a proposed class of present and former Micronesian employees who have worked at the Trust Territory government's headquarters on Saipan in the Northern Mariana Islands (NMI) during the period between January 9, 1978 and the present. They bring this action under 42 U.S.C. § 1983. They assert monetary, injunctive, and declaratory claims under the Trusteeship Agreement,
Defendants move to dismiss for lack of subject matter jurisdiction and for failure to state a claim. They alternatively move for summary judgment. The Court treats the motions as alternative motions to dismiss for lack of subject matter jurisdiction or for summary judgment." For reasons explained in this decision, the Court rules as follows:
1. Motions By the Trust Territory government and the High Commissioner
The Court denies the dismissal and summary judgment motions by the Trust Territory and the High Commissioner as to all claims except plaintiffs'*430 Title VI and Title VII claims. On the basis of 42 U.S.C. S 2000d-3, the Court dismisses Title VI claims for lack of subject matter jurisdiction. Because of plaintiffs' failure to comply with 42 U.S.C. S 2000e-5(e), the Court dismisses the Title VII claims on the same ground.
2.■ Motions By the United States, the Interior bepartment and the Interior Secretary*
The Court dismisses the monetary Trusteeship Agreement claims, the § 1981 claims, the S 1983 claims, the Title VI claims, and the Trust Territory Code Bill of Rights equal protection claims against the United States, the Interior Department and the Interior Secretary for lack of subject matter jurisdiction. The Court denies dismissal and grants summary judgment to these defendants on plaintiffs' Title VII claims. It denies both dismissal and summary judgment on plaintiffs' non-monetary Trusteeship Agreement claims against these defendants.
In so deciding the Court specifically holds that:
1. Plaintiffs may assert their Trusteeship Agreement claims in this Court without first pursuing the claims in the Trust Territory High Court;
2. The Trust Territory government and the High Commissioner of the Trust Territory are agencies of the United States under 48 U.S.C. § 1681(a) and therefore they are federal agencies for purposes of determining liability for Trusteeship Agreement violations;
3. § 1981, Title VI and Title VII apply within the NMI to the Trust Territory government and the High Commissioner;
4. The equal protection and due process guarantees of the Fifth Amendment or Fourteenth Amendment to the United States Constitution operate against the Trust Territory government and the High Commissioner;
5. The Trust Territory of the Pacific Islands is a "Territory" for purposes of § 1983; and
6. The Trust Territory government and the High Commissioner are suable "persons" under § 1983.
High Commissioner Executive Order No. 119 (May 25, 1979) —
■In January 1981 plaintiffs filed this class action under 42 U.S.C. § 1983 against the Trust Territory, the High Commissioner, the Interior Department, the Interior Secretary and the United States. —
Plaintiffs aver that the Trust Territory's salary plan
Defendants move to dismiss raider Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and under Rule 12(b)(6) for failure to state a claim. They alternatively' move under Rule 56 for-summary judgment. Initial argument on the motions occurred on May 8, 1981. While the motions were under advisement, plaintiffs amended their complaint on July 14, ■1982. After three stipulated time extensions, the Trust Territory and-the High Commissioner answered the First Amended Complaint on October 15, 1982. Defendants renewed their dismissal and summary judgment.motions and final oral argument occurred on February 24, 1983.
The Court has considered affidavits and other extra-pleading material submitted by the parties. —
On a motion to dismiss for lack of subject matter jurisdiction, the Court must construe the complaint in plaintiffs favor. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). The Court evaluates the entire complaint,, rather than the jurisdictional statement alone, to determine whether there is a basis for jurisdiction. 5 Wright & Miller, Federal Practice and Procedure; Civil § 1350 at 551-552 (1973); id., § 1206 at 77-78. It liberally reads the complaint to ascertain whether the allegations establish jurisdiction on grounds other than those pleaded. Hildebrand v. Honeywell, 622 F.2d 179, 181 (5th Cir. 1980); see Aguirre v. Automotive Teamsters, 633 F.2d 168, 174 (9th Cir. 1980).
Summary judgment is appropriate only if no material factual issue exists and movant is entitled to judgment as a matter of law. U.S. v. First National Bank of Circle, 652 F.2d 882, 887 (9th Cir. 1981). The Court must construe the pleadings, other record evidence and Its attendant inferences most favorably to plaintiffs. Harlow v. Fitzgerald, _ U.S. _, _, n.26, 102 S.Ct. 2727, 2737 n.26, 73 L.Ed.2d 396 (1982). A genuine factual issue may exist only if a viable legal theory would •entitle plaintiffs to judgment if they prove their asserted version of the facts. Ron Tonkin Gran Turismo v. Fiat Distributors, 637 F.2d 1376, 1381 (9th Cir. 1981), cert.denied _ U.S. _, 102 S.Ct. 128, 70 L.Ed.2d 109 (1981).
This case arises during a period of profound change in the governance of the Trust Territory. Although the United States still administers the area under the Trusteeship Agreement, since the mid-1970's the Trust Territory's people have entered into new negotiated relationships with the United States which afford them expanded powers of self-government.
The Covenant
The parties' major disagreement concerns the effect'upon the Trust Territory government of the Covenant's provisions on judicial authority and the applicability of federal laws. In order to understand the historical context of these issues, it is helpful to examine the evolution of United States administration of the Trust Territory.'
Articles 73-91 of the United Nations Charter provide for a trusteeship system for dependent non-self-goveming areas. Since 1947 the United States has administered the NMI, the Caroline Islands and the Marshall Islands as a "strategic" trusteeship.
The United States-drafted —
Trusteeship Agreement Article 6.1 requires the United States to develop self-government or independence in the Trust 23/ Territory. — ' This obligation is recognized as the United States’
Micronesian calls for meaningful self-determination 24/ resulted in the initiation of negotiations 25/ 'to define new status relationships with the United States. The NMI's historical pursuit of formal political union with the United States
Although the NMI officially remains part of the Trust Territory, most of the Covenant is already effective. Congressional approval of the agreement automatically implemented some of its provisions. See Covenant § 1003(a). A three-branch commonwealth government has functioned tinder a locally-drafted and promulgated Northern Mariana Islands Constitution (NMI Constitution)
Immediately after Congress approved the Covenant, the Interior Secretary created a temporary government to administer the, NMI separately from the rest of the Trust Territory during the interim preceding the § 1003(b) proclamation. Interior Department Secretarial Order No. 2989, 41 Fed.Reg. 15892 (1976) (Order 2989). Order 2989 granted the Congress of Micronesia and the High Court limited residual authority in the NMI during the order’s period of effectiveness. Id.. part VII, § 2; id., part XII. When the § 1003(b) proclamation issued on January 9, 1978, Order 2989 became ineffective. Id. part XIV; see Sablan Construction Co. v. Trust Territory. 526 F.Supp. 135, 140 (D.N.M.I.App.Div. 1981). The Trust Territory and the High Commissioner concede that on that date the Covenant and the NMI Constitution completely superceded the Tirust Territory government's secretarially-conferred NMI authority. Answer to the First Amended Complaint by Defendants Trust Territory and High Commisslcfier, paragraphs 5, 9, 10, 19.
The Trust Territory government's headquarters remains on Saipan in the NMI.
Although the President's Representative was evidently authorized to discuss relocation during negotiations, his letter states that
IV. TRUSTEESHIP AGREEMENT CLAIMS
The Trusteeship Agreement creates direct and affirmative rights which are judicially enforceable in federal courts. People of Saipan. 502 F.2d at 97. Congress, the executive branch and commentators have described those rights as unprecedented among trusteeship agreements in their detail, precision and scope. S.Rep.No. 471, 80th Cong. 1st Sess. 5, (1947); Trusteeship Agreement for the Territory of the Pacific Islands: Hearing on S.J. 143 Before the United States Senate Committee on Foreign Relations, 80th Cong. 1st Sess. 6 (1947)(testimony-by Secretary of State Marshall); L. Goodrich, E. Hambro & A. Simons, Charter
Defendants seek dismissal or summary judgment on three grounds. First, they state that plaintiffs must initially assert their Trusteeship Agreement claims in the High Court. They predicate this argument upon People of Saipan, 502 F.2d at 99. For reasons explained in Part IV-A, the Court rejects this contention. Second, defendants maintain that the Trust Territory government is. not a federal agency, and that therefore they cannot be' held liable for the High Commissioner's actions as territorial chief executive. This argument fails for reasons stated in Part IV-B. Third, the United States, the Interior Department and the interior Secretary (the Interior defendants) submit that the Trusteeship Agreement is not judicially enforceable in this action because: (1) local law provides an "alternative enforcement mechanism", and (2) the Trusteeship Agreement does not specifically prohibit wage discrimination in Trust Territory government employment. The Court rejects this argument in Part IV-C-2.
The Court rules that it has subject matter jurisdiction and holds that the Trust Territory government and the High Commissioner are federal agencies for purposes of Trusteeship Agreement' analysis. It accordingly denies dismissal as to plaintiffs' claims against those defendants. Since material factual issues exist concerning these claims, the Court also denies summary
A. People of Saipan's Comity Doctrine and the Covenant's Elimination of High Court Jurisdiction in the NMI Over Actions Filed On or After January 9, 1978
Approximately two years before Congress approved the Covenant and created this Court, the Ninth Circuit declared in People of Saipan that as a.matter of comity litigants should initially assert Trusteeship Agreement claims in the High Court in cases challenging the High Commissioner's actions as territorial chief executive (the comity doctrine). 502 F.2d at 99. Citing that statement, defendants argue that the Court presently lacks subject matter jurisdiction.
The Court disagrees. Congress and the people of the NMI have dramatically and permanently altered the repose of governmental power and other circumstances which existed when People of Saipan announced the comity doctrine. By fundamentally reconstituting judicial authority in the NMI, the Covenant's judiciary provisions, as implemented by federal legislation and the NMI Constitution, implicitly
1. The Covenant and Its Implementation
Covenant 402(a) and 48 U.S.C. § 1694(a)
Defendants apparently believe that this intent also encompasses the High Court. The Trust Territory and the High Commissioner admit in their Answer to the First Amended Complaint that on January 9, 1978 the Covenant and the NMI Constitution superceded the Trust Territory government's secretarially delegated authority. Neither these defendants, the United States nor the Interior defendants identify the purported legal source of High Court jurisdiction over actions filed in the NMI after that date. Covenant 505 provides for the limited continuity of Trust Territory laws.
Construction of the Covenant must comport with the guiding principle that "circumstances not plainly covered by the terms of a statute
The Covenant's legislative history and implementation demonstrate that the purpose of its judiciary provisions was to reconstitute judicial authority in the NMI. The joint report of the Senate Foreign Relations and Armed Services Committees-
2. 48 U.S.C. § 1681(a)
An analysis of the Covenant's federal judiciary provisions and 48 U.S.C. § 1694a in light of 48 U.S.C. $ 1681(a) confirms this conclusion. Section 1681(a) states:
Until Congress shall further provide for the government of the Trust Territory of the Pacific Islands, all executive, legislative, and judicial authority necessary for the civil administration of the Trust Territory shall continue to be vested in such person or persons and shall be exercised in such manner and through such agency or agencies as the President of the United States may direct or authorize.
In Sablan Construction Co. v. Trust Territory, this Court’s appellate division examined the interrelationship between § 1681(a) , Covenant § 402(b) and 48 U.S.C. i 1694a(b). —
One jurisdictional issue in Sabían Construction —
Like the governments of territories and possessions under United States sovereignty, the Trust Territory government of which the High Court is part is "created pursuant to the authority of Congress." Sabían Construction accurately characterized the High Court’s judicial power as delegated United States authority emanating from Congress. —
The Covenant represents the United States' fulfillment of its obligation under the Trusteeship Agreement to develop and to grant self-government or independence in the NMI in accordance with the wishes of the NMI's people. See, e.g.. S.Rep.No. 433, supra at 23, Like the Sabían Construction court, this Court finds it contextually significant that the Covenant mandated the realignment of judicial authority well before the termination of the trusteeship. 526 F.Supp. at 139 and n.13. This fact assumes even greater importance when viewed within the historical background of Micronesian pursuit of federal court access. S.Rep.No. 433, supra, at 43. The legislative history of both the Covenant and the NMI Constitution reveals that the elimination'of the pre-Covenant judicial system is an objective which is vital to the Covenant's spirit.
For the reasons above, Fulfilling that responsibility, the Court longer prevents the exercise of jurisdiction over Trusteeship ^Agreement claims which have been initially asserted in the High Court. Although district courts should not prematurely anticipate the judicial invalidation of circuit precedent,
concludes that responsibility the Court concludes that the policies embodied in the Covenant's judiciary provisions supersede People of Saipan's comity doctrine. The deferral of jurisdiction on comity grounds necessarily presumes the -existence of concurrent jurisdiction in the court deferred to. See, e.g., Rose, _ U.S. at _, 102 S.Ct. at 1203; Fay v. Noia, 372 U.S. 391, 420, 83 S.Ct. 822, 838, 9 L.Ed.2d 837 (1963). By terminating the High Court's NMI jurisdiction, the Covenant nullified the basic premise underlying People of Saipan's comity doctrine. The Court's recognition that it may exercise jurisdiction effectuates People of Saipan's paramount objective. That objective is to ensure that Micronesians have "a forum which can hear their claim that the High Commissioner has violated the duties assumed by the United States in the Trusteeship Agreement." 502 F.2d at 100.
The United States and the Interior defendants maintain that they cannot be held liable for Trusteeship Agreement violación! by the Trust Territory government because the Trust Territory government is not a federal agency. Plaintiffs respond with the equally sweeping assertion that Trust Territory government employees are necessarily United States government employees due to the congressional, presidential and secretarial delegation through which the Trust Territory government derives its authority. While the Court rejects plaintiffs' syllogism, it holds that the Trust Territory government and the High Commissioner are agencies of the United States under 48 U.S.C. § 1681(a) and therefore oust be considered federal agencies for purposes of determining liability for Trusteeship Agreement violations.
Like other territorial governments under United States
On the other hand, it does not follow that the Trust Territory government is not a federal agency for purposes of Trusteeship Agreement analysis merely because the Interior Department permits it to function with a degree of autonomy.
Defendants’ argument overlooks the language; of 48 U.S.C. § 1681(a) and the Interior Department secretarial order which defines the Trust Territory government's authority. Trusteeship Agreement Article 3 grants the United States "full powers of administration, legislation and jurisdiction" subject to the specific obligations imposed by the agreement. .’See note 19, supra. Title 48 U.S.C. § 1681(a) instructs that the United States' powers shall be exercised by "such agency or agencies as the President may direct or authorize" until Congress provides otherwise. See p. 21. supra. The Interior Secretary obtained $.1681(a) authority pursuant to presidential delegation —
The Trust Territory High Court itself has recognized that the Trust Territory government is a S' 1681(a) federal agency:
*454 The Trust Territory of the Pacific Islands appears to be quite definitely of a dual nature. It certainly is the means by which the United States carries out the major part of its responsibilities as administering authority under the Trusteeship agreement... Furthermore, the Trust Territory Government seems clearly intended to come within the meaning of the words "such agency or agencies as the President of the United States may direct or authorize" as used in 48 U.S.C. § 1681(a) in providing for the government of the area. The Trust Territory appears to act sometimes as a part of the Department of the Interior and sometimes as a separate, though subordinate, body having a will of its own.
Alig v. Trust Territory of the Pacific Islands, 3 T.T.R. 603, 612-613 (H.C.App.Div. 1967). See also Castro v. United States. 500 F.2d 436, 437 (Ct.Cl. 1974)("the Government of the Trust Territory of the Pacific Islands, administer[s] Saipan under a delegation to the United States from the United Nations...") (emphasis added). Secretarial Order 3039 is the most recent Interior Department regulation from which the Trust Territory government derives its authority. Section 3 of Order 3039 identifies governmental functio which 'are retained by the United States" (emphasis'added). Subsection 3.a provides in pertinent part:'
The High Commissioner of the Trust Territory of the Pacific Islands, under the general supervisory authority of the Secretary, shall continue to exercise all authority necessary • to carry out the obligations and responsibilities of the United States under the 1947 Trusteeship Agreement, in order to insure that no action are [sic] taken that would be inconsistent with the provisions of such Trusteeship Agreement, this Order, and with existing treaties, laws, regulations, and agreements generally applicable in the Trust Territory of the Pacific Islands (emphasis added).
Although courts have determined that the Trust Territory government is not a "federal agency" for purposes of certain statutes or general government contracting, defendants do not cite nor has the Court discovered any authority indicating that the Trust Territory government is not a federal agency for purposes of fulfilling the United States' Trusteeship Agreement obligations. Only two of the cases upon which defendants rely are binding on this Court.
[A]ny definition [of the term agency] can be of only limited utility to a court confronted with one of the myriad organizational arrangements for -getting- the- business of the government done... The unavoidable fact is that each new arrangement must be examined anew and in its own context.
Public Citizen Health Research Group v. Department of Health, Education and Welfare. 668 F.2d 537, 542 (D.C.Cir. 1981). See also Lewis v. United States, 680 F.2d 1239, 1242-1243 (9th Cir. 1982)(holding that Federal Reserve Banks — are not federal agencies for purposes of’the’Federal Tort Claims Act and noting that Reserve Banks and their employees have properly been held to be federal instrumentalities for purposes of other statutes).
The rationale underlying the Ninth Circuit's holdings in People of Saipan implicitly acknowledged that the High Commissioner is a federal agency for purposes of fulfilling the United States' Trusteeship Agreement obligations. The district court ruled that the High Commissioner was exempt from Administrative Procedure Act review under a statutory exception for the governments of the United States territories or posse'ssions. As an integral part of
Defendants observe that courts have described the Trust Territory government as a "quasi-sovereign" —
Defendants misconceive both the nature and the source of .the Trust Territory government's authority. Sovereignty is an elusive concept
The Court accordingly decides that, because the Trust Territory government and the High Commissioner are federal agencies under 48 U.S.C. § 1681(a), they necessarily are federal agencies for purposes of determining liability for Trusteeship Agreement violations.
C. Rulings on the Motions
1. The Trust Territory Government and the High Commissioner
The Court concludes that' it has subject matter jurisdic-460 plaintiffs’ monetary and non-monetary Trusteeship Agreement claims against the Trust Territory government and the High Commissioner. A claim "arises under" a treaty for purposes of federal question jurisdiction under 28 U.S.C. § 1331 if the claim asserts a right created by treaty and the construction of a treaty will determine the claim's disposition. Skokomish Indian Tribe v. France, 269 F.2d 555, 558 (9th Cir. 1959); see Buechold v. Ortiz, 401 F.2d 371, 372 (9th Cir. 1968). Congress intended this Court's federal question jurisdiction under 48 U.S.C. § 1694a(a) to be coextensive with § 1331 jurisdiction. See S.Rep.No. 433, supra, at 72.
Although the Trust Territory government is a federal agency for purposes of Trusteeship Agreement liability analysis, jurisdiction over plaintiffs' monetary claims against the Trust Territory government is not impaired by the presence of jurisdictional obstacles to suit against the United States itself. Like other territorial governments exercising delegated congressional authority, the Trust Territory government is a subordinate^-and administratively separate entity in relation to the United States government. —
When the Supreme Court clarified the limits of the government immunity doctrine in Nevada v. Hall, it noted that the basis for the doctrine is "'the logical and practical ground that there can be no legal right as against the authority that makes the law upon which the right depends'". Id. at 415-416, quoting Kawananakoa v. Polyblank, 205 U.S. 349, 353, 27 S.Ct. 526, 527, 51 L.Ed. 834 (1907). —
The Court accordingly denies the dismissal motions by the Trust Territory government and the High Commissioner. Because the record discloses unresolved material factual issues, the Court also denies summary judgment. No Oilport v. Carter, 520 F.Supp. 334, 373 (W.D. Wash. 1981).
2. The United.States, The Interior Department and the Interior Secretary
The United States and the Interior defendants move for dismissal on the additional ground that the Trusteeship Agreement does not confer judicially enforceable rights against pay scale discrimination. Defendants primarily base this argument upon the following statement by the Ninth Circuit in People of Saipan;
The extent' to which an international agreement establishes affirmative and judicially enforceable obligations without implementing legislation must be determined*464 in each case by reference to many contextual factors: the purposes of the treaty and the objectives of its creators, the existence of domestic procedures and institutions appropriate for direct implementation, 'the availability and feasibility of alternative enforcement methods, and the immediate and long-range social consequences of self- or non-self-execution.
502 F.2d at 97 (citation omitted). Defendants contend that local laws provide "alternative enforcement methods" within the meaning of the statement above.
Pefendants have misinterpreted People of Saipan's analysis. The "alternative enforcement mechanisms" to which the court referred wer-e alternative international forums. As reflected in the paragraph of the People of Saipan opinion immediately preceding the section quoted above, the court was rejecting defendants' argument that a sufficient enforcement mechanism exists in the United Nations Security Council, where the United States possesses veto power. See id. and n.9. The court did nor suggest that a Trusteeship Agreement right is judicially unenforceable when the alleged illegal action by the United States or its Trust Territory government also potentially violates other federal laws or local laws. It merely applied a test developed by scholarly commentary for determining whether an international agreement is judicially enforceable at all as United States domestic law. Because the People of Saipan definitively resolved that threshold question, the formulation quoted is not the relevant inquiry here.
Defendants overlook the purposive approach to treaty construction articulated by the Supreme Court for the enforcement of treaties as domestic law.
The question pf whether defendants have violated the Trusteeship Agreement ultimately will be resolved by examining
The Court also finds no merit in the argument that the United States and the Interior defendants are free from Trusteeship Agreement liability merely because it was the High Commissioner who. promulgated the disputed pay scales. Throughout this proceeding, defendants have vigorously asserted that they are trustees in relation to the Trust Territory's people. Defendants also correctly maintain that a trustee can properly delegate duties which it would be unreasonable to require the trustee to personally perform. See Restatement, Second, Trusts § 171, 'comment d (1959). Under correlative fiduciary principles, the trustee must exercise general supervision over- the conduct of its delegate, and may be held liable to the beneficiary, if it permits, acquiesces in or fails to compel the redress of acts by the delegate which would constitute a breach of trust if committed by the trustee. See id. § 151, comment k; id. § 225(2). The Interior Department's own regulations therefore properly reflect that the Interior Secretary's delegation of authority does not relieve him of responsibility for action taken pursuant to the delegation. Interior Department
a. Monetary Claims
Although People of Saipan's comity doctrine does not constrain the Court's jurisdiction, a defect in the complaint requires the dismissal of plaintiffs' monetary claims against the United States. —
While the Court must construe the complaint in plaintiffs' favor, the policy of generous construction cannot supply essential jurisdictional facts which are not pleaded. The absence of allegations limiting each claim to $10,000 is fatal to Tucker Act jurisdition. Sheehan v. Army and Air Force Exchange Service, 619 F.2d 1132, 1137 n.7 (5th Cir. 1980), rev'd on other grounds 456 U.S. _, 102 S.Ct. 2118, 72 L.Ed.2d 520 (1982).
The Court also dismisses the monetary claims against the Interior Department and the Interior Secretary. These claims effectively operate against the United States. See Dugan v. Rank, 372 U.S. 609, 621, 83 S.Ct. 999, 1007, 10 L.Ed.2d 15 (1963). As explained above, plaintiffs have not successfully invoked Tucker Act jurisdiction over the United States. Even if plaintiffs had done so, the dismissal of the Interior defendants would still be . required. The only proper Tucker Act defendant is the United States. Bauer v. McCoy. CV 81-19, Decision at 15 n.27 (D.N.M.I. 1982); cf. Davis v. United States, 667 F.2d 822, 825 (9th Cir.
b. Non-Monetary Claims
The Administrative Procedure Act (APA)
Construed in plaintiffs' favor, the First Amended Complaint alleges that the United States and the Interior defendant; have failed to act as required by the Trusteeship Agreement. Plaintiffs aver that the Trust Territory government has discriminated against -them "under the direction and supervision of the Department of the Interior and the United States." First Amended Complaint, Count I, paragraph 13. Plaintiff Manglona’s affidavit
Neither the injunction nor the declaration which plaintiffs seek would constitute a monetary decree against the United • States government. Plaintiffs ask the Court to enjoin defendants from "maintaining" or "continuing" the disputed pay scales . With respect to the United States and the Interior defendants, an injunction so framed would effectively require these defendants to supervise the pay scale policies of their delegate the Trust Territory government as allegedly mandated by the Trusteeship Agreement.
Finally, the § 706(a)(1) "agency discretion" exception to APA review is unavailable to defendants. Section 706(a)(1) delineates a very narrow exception which covers only those rare instances in which statutes are so broadly drawn that there is no law to apply. Citizens to Preserve Overton Park Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820-821, 28 L.Ed.2d 136 (1971); Rank v. Nimmo, 677 F.2d 692, 699 (9th Cir. 1982), cert.denied _ U.S. _, _, 103 S.Ct. 210, 74 L.Ed.2d 168 (1982). This is not an instance in which there is no law to apply. As the Ninth Circuit decided in People of Saipan, the Trusteeship Agreement articulates direct and affirmative legal obligations which are not too vague for application and enforcement. 502 F.2d at 97, 100. The Article 6 obligations at issue here are unequivocally stated in mandatory and non-discretionary language.
For these: reasons, the Court concludes that it has jurisdiction over plaintiffs' injunctive and declaratory claims. Defendants' dismissal motions are denied. Plaintiffs have yet to prove that defendants' alleged omissions violate the Trusteeship Agreement. The unresolved factual issues which are relevant to this question necessitate the denial of summary judgment. 520 F.Supp. at 373.
A. Introduction
The parties do not dispute the applicability of § 1981, § 1983, Title VI and Title VII in the NMI since January 9, 1978. Under Covenant § 502(a)(2), federal laws which generally apply in the States and in Guam also apply in the NMI unless the Covenant provides otherwise. —
Plaintiffs contend that, whatever may be the applicabi-91/ lity of these civil rights law elsewhere in the Trust Territory^
Defendants reply that § 502(a)(2) does not affect the Trust Territory government and that therefore the Trust Territory government and the High Commissioner cannot be sued under § 1981, § 1983, Title VI or Title VII. This argument essentially rests upon two premises.
First, defendants submit that § 502(a)(2) does not manifest congressional intent to apply federal legislation to the Trust Territory government. Neither § 502(a)(2) nor any of the
Second, defendants assert that the Trust Territory government has judicially recognized "qualified" or "quasi" • sovereign status as an entity distinct from the United States government. Defendants do not clearly articulate how or why this status insulates the Trust Territory government from the Covenant. Defendants apparently reason that Trust Territory government cannot be affected by Covenant provisions which the United States government negotiated and enacted into law.
The Court rejects defendants' position. Gale does not unequivocally stand for the "specific inclusion" statutory construction theory which defendants advance. To the extent that Gale actually supports that theory, the Court must decline to follow the decision. When statutory language is inconclusive, as it is in Covenant § 502(a)(2), the precedentiaily substantiated, logical and realistic inquiry is whether the application of federal legislation to the Trust Territory government is consistent with: (1) the manifest purposes and enactment history of the legislation; and (2) the United States' fiduciary obligations to the people of the TruBt Territory under the Trustee
^ Court confronts four questions. Section 1981, Title VI and Title VII are sources of substantive federal rights which § 502(a)(2) confirms as applicable in the NMI. The first question is whether the application of these statutes to the Trust Territory government through § 502(a)(2) is consistent with the purposes and legislative'history of the Covenant and with the Trusteeship Agreement. The Court decides that it is. The Court accordingly holds that the Trust Territory government and the High Commissioner may be sued under § 1981, Title VI and Title VII for their actions taken in the NMI on or after January 9, 1978. In contrast to the statutes above, § 1983 is not a source of substantive rights. Chapman v. Houston Welfare Rights Organization. 441 U.S. 600, 618, 99 S.Ct. 1905, 1916, 60 L.Ed.2d 508 (1979). In order to determine whether plaintiffs may maintain their § 1983 claims, it'is necessary to look beyond,§ 502(a)(2) and examine the rights which plaintiffs seek to vindicate as well as § 1983's purposes and legislative history. The rights which plaintiffs seek to enforce under § 1983 are federal constitutional guarantees of due process
For these reasons and others stated below, the Court denies defendants' dismissal and summary judgment motions as to plaintiffs' § 1981 and §.1983 claims. Because the provision of employment is not the primary objective of federal financial assistance to the Trust Territory, 42 0.S.C. § 2000d-3 compels the dismissal of plaintiffs' Title VI claims for lack of subject matter jurisdiction. The Court dismisses plaintiffs' Title VII claims on the same ground for failure to comply with 42 U.S.C. § 2000e-5(e).
1. Jurisdiction: The Applicability of § 1981, Title VI and Title VII to the Trust Territory Government and the High Commissioner Through the Operation of Covenant § 502(a)(2)
Title 42 U.S.C. § 1981 provides:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties , taxes, licenses, and exactions of every kind, and to no other.
Because § 1981 has applied in the NMI at least since January 9, 1978, the NMI is a "State" or a "Territory" for purposes of § 1981. —
a. Statutory Construction Principles
Under Trusteeship Agreement Article 3, the United States' powers of administration, legislation and jurisdiction include
Their point of disagreement apparently is the meaning of "manifest" intent. Plaintiffs maintain that § 502(a)(2) is an exercise of Article 3 authority which affects the Trust Territory government equally with other persons and entities in the NMI. —
Gale v. Andrus is the foundation of this "specific inclusion" argument. In Gale the two-judge majority ostensibly asserted the Trust Territory's "Lack of Specific Statutory Inclusion" in the Freedom of Information Act (FOIA) —
First, the majority stated that "the Trust Territory should not be required to comply with the APA or the FOIA because
Second, the majority cited with apparent approval the statutory construction principles articulated in People of Enewetak v. Laird. —
As Judge King observed in People of Saipan, in every reported case requiring judicial interpretation of the applicability of ambiguous federal legislation to the Trust Territory, the courts have consulted all available evidence to discover and to effectuate congressional intent. 356 F.Supp. at 650 n.11. Decisions subsequent to People of Saipan, including Gale itself, demonstrate the consistency of this sound judicial practice.
Although the United States Supreme Court has never directly addressed the question of the applicability of federal legislation to the Trust Territory, its precedents also require a purposive approach to statutory construction. The starting point of statutory construction undeniably is the language of the statute itself. Watt v. Alaska. 451 U.S. at 266, 101 S.Ct. at 1681. Yet, where, as here, neither the statutory language nor the legislative history provides an express answer, courts must embrace the construction which "more accurately reflects the intention of Congress, is more consistent with the structure of
it is also iniportant to construe federal legislation consistently with the Trusteeship Agreement to the extent that a harmonious construction is possible. The avoidance of conflict between statutes and treaties is a fundamental interpretive principle. E.g., Whitney v. Robertson, 124 U.S. 190, 194, 8 S.Ct. 456, 458, 31 L.Ed. 386 (1888); U.S. v. Vetco, 691 F.2d 1281, 1286 (9th Cir. 1981), cert.denied _ U.S. _, 102 S.Ct. 671, 70 L.Ed.2d 639 (1981). The precedents reflect the judiciary's efforts to give legislation that meaning which accommodates and promotes the fulfillment of the United States' fiduciary obligations to Micronesians under the Trusteeship Agreement, See. e.g., Ralpho v. Bell, 569 F.2d 607, 626 and n.139, reh. denied 569 F.2d 636 (D.C.Cir. 1977)(construing the Micronesian Claims Act in harmony with the Trusteeship Agreement's human rights guarantees);
With reference to the Covenant in particular, the legislative history instructs that ambiguities in the document must be construed in favor of the NMI's people. Representative Phillip Burton, the chairman of the Subcommittee on Territorial and Insular Affairs of the House Committee on Interior and Insular Affairs was one of the Covenant's sponsors and floor managers. Six days before Congress enacted the Covenant?, Representative Burton stated;
*483 Our committee's and my own intent is that all possible ambiguities should be resolved in favor of and to the benefit of the people of the Government of the Northern Mariana Islands.
122 Cong.Rec. 7272 (1976).
b. Application of Statutory Construction Principles to Covenant § 502(a)(2)
In order to construe § 502(a)(2), we must examine its purposes, its legislative history and its relation to other Covenant provisions. The Senate Committee on Interior and Insular Affairs explained § 502 as follows:
The purpose of this section is to provide a workable body of law when the new government of the Northern Mariana Islands becomes operative pursuant to section 1003(b)... [1] The basic principle underlying section 502 is that the federal laws applicable to Guam and which are of general application to the several States shall also apply to the Northern Mariana Islands...
S.Rep.No. 433, supra, at 77; accord. Report of the Joint Drafting Committee on the Negotiating History C-3 (1975), reprinted in id. at 405; MPSC Analysis at 48-50, reprinted in Senate Interior and
The Trust Territory of the Pacific Islands..-, [is] now wholly run by the Executive branch of the federal, government and... can be affected not only by a wide variety of federal legislation, but also by executive orders over which they have no control. ¿Chis will not be true with respect to tfie Commonwealth of the Northern Marianas. It will not even be true prior to the establishment of the Commonwealth, for section l05 comes into effect before termination.
Id. at 16, reprinted in Senate Interior and Insular Affairs Committee Hearing on S.J.Res. 107 at 374 (emphasis added).
The MPSC further explained that "it was not pdssible for the MPSC and the United States delegation to review each federal law to determine whether and how it should apply." Id. at 48, reprinted in Senate Interior and Insular Affairs Committee Hearing on S.J.Res. 107 at 406 (emphasis added). As indicated above in
The Court must construe § 502(a)(2) in.a manner which most fully serves the statute's purposes and nurtures its basic policies. Abramson, _ U.S. at _, and n.7, 102 S.Ct. at 2061 and n.7; Rose, _ U.S. at _, 102 S.Ct. at 1203. Assuming arguendo that the Covenant negotiators and Congress did not foresee the Trust Territory government's continued presence in the NMI, the Court must construe § 502(a)(2) consistently with what the negotiators and Congress would have intended had they acted at the time of the legislation with the present situation in mind. Vermilya-Brown, 335 U.S. at 388, 69 S.Ct. at 146.
After carefully weighing the evidence above, the Court concludes that the Trust Territory government and the High Commissioner must comply with federal legislation which applies in the NMI through the operation of § 502(a)(2), unless the legislation's language or purposes instruct otherwise. Because there is no contrary indication in the language or policy of § 1981, Title VI or Title VII, the Trust Territory government and the High Commissioner must comply with those statutes. Statements at congressional hearings made by interested parties as to problems requiring legislative attention are useful aids in determining legislative intent. See 2A Sutherland Statutory Construction S 48.10 at 209 (4th Ed. 1973). This is especially true when the statements receive acknowledgement in a formal committee report. See note 40, supra. On the basis of the testimony presented by the Congress of '
To the extent that the intended applicability of § 502(a)(2) to the Trust Territory government is unclear, the ambiguity must be resolved in favor of the people of the NMI. See notes 106-107 and accompanying text, supra. The NMI sought to ensure that its people would receive the protection of federal laws well before the termination of the trusteeship. The purpose of promptly implementing § 502(a)(2) and other Covenant provisions was to afford the NMI's people as many of the benefits of the NMI's new political status as early as possible and to protect them in the event that the trusteeship continued longer than expected for reasons beyond their control, as the trusteeship ultimately has. Sablan Construction. 526 F.Supp. at 139 and n.13; see MPSC Analysis at 133, reprinted in Senate Interior and Insular Affairs Committee Hearing on S.J.Res. 107, supra. at 491. While chairing his House
[O]ur objective is to respect the free will of the people of the Northern Marianas. We do not want the Trust Territory High Commissioner's office to influence the outcome109/ . . We want the people of the Northern Marianas to have the freest and most open opportunity to speak for themselves, and to choose a future for themselves.
Marianas Political Status: Hearing Before the Subcommittee on Territorial and Insular Affairs, United States House of Representatives Committee on Interior and Insular Affairs, 94th Cong. 1st Sess. 122 (1975). The Covenant, and thus § 502(a)(2), represents the United States' fulfillment of its obligation under Trusteeship Agreement Article 6.1 to grant self-government in accordance with the wishes of the NMI's people. S.Rep.No. 433, supra, at 23. The rationale expressed by Representative Burton therefore also applies forcefully in determining whether the Trust Territory government and the High Commissioner are bound by § 502(a)(2). As demonstrated in the MPSC's Covenant analysis, one of the NMI people's core objectives was to eliminate governance through unilaterally imposed executive orders. Although the Trust Territory government has no governmental authority in the NMI, High Commissioner Executive Order 119 undeniably affects the livelihood and welfare of NMI residents who work for the Trust Territory government. It is a classic example of the type of. "executive orders over which they have no control." Analysis at 16, reprinted in Senate Interior
2. Issues Relevant to Defendants' Summary Judgment Motion
Defendants present two arguments for summary judgment on the § 1981 claims. Neither contention is meritorious.
First, defendants assert that the applicable statute of limitations ma,y bar plaintiffs' c1aims.
Second, defendants argue that only racial discrimination is actionable under § 1981. Noting that the Trust Territory's pay scales facially discriminate on the basis of alienage, defendants maintain that § 1981 does not prohibit national origin or alienage discrimination, and that therefore no § 1981 cause of action lies. After carefully considering this argument, the Court must deny summary judgment.
[Discriminatory intent need not be proven by direct evidence. 'Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another.' (citation omitted). Thus determining the existence of a discriminatory purpose demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available (citation omitted).
Rogers v. Lodge. _ U.S. _, _, 103 S.Ct. _, _, 73 L.Ed.2d 1012, 1018 (1982). Given the inadequate factual record here, the
Recent precedent within the Ninth Circuit disposes of defendants' argument that national origin discrimination is not actionable under § 1981. In Ortiz v. Bank of America, 547 F.Supp. 550 (E.D.Cal. 1982), the court's thorough and scholarly opinion reviewed the legislative history and judicial construction of § 1981. The court correctly observed that neither the Supreme Court nor the Ninth Circuit has decided whether there is tenable distinction between racial discrimination claims and national origin discrimination claims for purposes of § 1981. Id. at 556-559. Hie court then analyzed three lines of § 1981 cases from other circuits.
Finally, the Court rejects defendants' contention that § 1981 is inapplicable to alienage-based discrimination. The Supreme Court has declared that § 1981 protects all persons against governmental discrimination based on alienage. Takahashi v. Fish & Game Commission, 334 U.S. 410, 419, 68 S.Ct. 1138, 1142, 92 L.Ed. 1478 (1948) (construing 8 U.S. § 41, which was subsequently recodified as § 1981). Under a contrary view taken by some courts, Takahashi establishes only that aliens are protected against discrimination which violates § 1981, and does not establish that § 1?81 creates a cause of action for alienage-based discrimination see, e.g.. Rios v. Marshall. 530 F.Supp. 351, 361 and n.9 (S.D.N.Y. 1981). This Court cannot concur in that view. The California ■statute phich was challenged in Takahashi explicitly discriminated on the basis of eligibility of citizenship. See 334 U.S. at 413
C. § 1983 Claims
We now address plaintiffs' § 1983 claims. Section 1983 states in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, or any State or .Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an hction at law, suit in equity, or other proper proceeding for redress.
Section 1983 is not a source of substantive rights. Chapman v. Houston Welfare Rights Organization. 441 U.S. at 618, 99 S.Ct. at
1. Applicability of the Equal Protection and Due Process Guarantees of the Fifth and Fourteenth Amendments to the United States Constitution to the Trust Territory Government and the High Commissioner
The first inquiry in any § 1983 suit is whether plaintiff has been deprived of a right secured by the Constitution or laws of the United States. Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979). Plaintiffs allege the violation of the due process and equal protection guarantees of the Fifth and Fourteenth Amendments to the United States Constitution. Covenant § 501(a) recognizes the applicability of those guarantees in the NMI.
In a series of decisions known as the Insular Cases,
Although the areas involved in the Insular Cases were territories in which the United States claimed sovereignty, courts have implicitly recognized that the term "unincorporated territory is sufficiently elastic to include the geographic area of the Trust Territory. See Ralpho v. Bell, 569 F.2d at 618-619 and nn.69-70; Thompson v. Kleppe, 424 F.Supp. 1263, 1268-1269 (D. Haw. 1976).
In Porter, the court indicated that the United States could not be held vicariously liable under the Fifth Amendment's Just Compensation Clause for actions by the Trust Territory Attorney General and another lower level Trust Territory official. See 496 F.2d at 591-592. Porter did not involve a challenge to High Commissioner action, as this case does. To the extent that Porter suggests that the Constitution does not operate against the High Commissioner or the Trust Territory government, the Court must respectfully disagree.
As reaffirmed by the Supreme Court and in Ralpho v. Bell. "there cannot exist under the American flag-
For these reasons, the Court concludes that federal constitutional guarantees of equal protection and due process operate against the Trust Territory government and the High Commissioner. Analysis is the same under the Fourteenth Amend-
2. The High Commissioner's Promulgation of the Trust Territory Headquarters Salary Plan as Action Under Color of Territorial Law for Purposes of § 1983
a. Action Under Color of Territorial Law
The second analytical step is to determine whether the High Commissioner acted under color of law of a "Territory". We first turn to the "color of law" inquiry. Action under color of law is a jurisdictional prerequisite to a § 1983. Cox v. Hellerstein, 685 F.2d 1098, 1099 (9th Cir. 1982). As this Court observed in Bauer v. McCoy, supra, because the High Commissioner functions as both an Interior Department official and as a territorial chief executive, it is important to determine whether the challenged action was taken under color of federal law or territorial law. See Bauer, Decision at 20-21 characterizing the High Commissioner's determination of an Interior Department employee's
The Court concludes that the High Commissioner's pronul-gation of the disputed pay scales through Executive Order No. 119 was action under color of territorial law. The High Commissioner issued Order 119 pursuant to authority claimed under Secretarial Order 3039. See note 3, supra. Local laws enacted under legislative power granted by Congress are territorial laws rather than laws of the United States. E.g., Harris v. Boreham, 233 F.2d at 113 (collecting cases). Because Order 3039 is a "law" promulgated . as local "legislation" pursuant to congressionally derived authority, the High Commissioner's action in reliance upon the order constituted action under color of territorial law.
h. The Trust Territory of the Pacific Islands as a "Territory" For Purposes of § 1983
Defendants also 'contend that the Trust Territory of the Pacific Islands is not a "Territory" for purposes of § 1983. In support of this proposition defendants cite the ruling in Thompson v. Kleppe that "the Trust Territory is not a State within § 1983..." 424 F.Supp. at 1265.
Stare decisis does not require one district judge to follow the decision of another. Starbuck v. City and County of San Francisco, 556 F.2d 450, 457 n.13 (9th Cir. 1977). A court should give less deference to a decision which was "rendered without benefit of a full airing of all the relevant considerations
Section 1983 is remedial legislation designed to preserve human rights-. Therefore, it .must be liberally and beneficially construed. Owen v. City of Independence, Missouri, 445 U.S. 622, 636, 100 S.Ct. 1398, 1408, 63 L.Ed.2d 673 (1980. Its language nust be given "'the. largest latitude consistent with the words employed'...". Id.
The contours' of §■ 1983 must necessarily remain flexible to accommodate 'changing circumstances and the exigencies of- a given era. Because it is remedial in nature-, § 1983 is appropriately suited to redress any new method of interference with the' rights which its words protect. 'For • it is the constitutional right, regardless of the method of interference, which is the subject of the statute and which in precise terms it protects from injury or oppression.' (citation omitted). -'
Green v. Dumke. 480 F.2d 624, 268 n.7 (9th Cir. 1973).
Under settled Supreme Court principles of statutory construction, the word "territory" is an inherently ambiguous end elastic term. Its meaning depends upon the character and aim of
Section 1983 is part of the Civil Rights Act of 1871. Congress passed the 1871 Act for the express purpose of enforcing the Fourteenth Amendment. Congress intended to create a remedy as broad as the Fourteenth Amendment affords the individual. Lugar v. Edmunson Oil Co., - U.S. _, _, 102 S.Ct. 2744, 2752-2753, 73 L.Ed.2d 482 (1982). Section 1983 originally applied only to action under color of state law. In 1874, Congress added the words "or Territory" without explanation. Flores de Otero, 426 U.S. at 582, 96 S.Ct. at 2272.
In District of Columbia v. Carter, the Supreme Court held that the District of Columbia is not a "State or Territory” for purposes of § 1983. 409 U.S. at 424, 93 S.Ct. at 606. The court explained the practical needs which led to the inclusion of
[Effective federal control over the activities of territorial officials was virtually impossible. Indeed, "the territories were not ruled immediately from Washington Rather Congress left municipal la» to be developed largely by the territorial legislatures within the framework of organic acts and subject to a retained power of veto. The scope of self-government exercised under delegations was nearly as broad as that enjoyed by the States... (citations omitted) [A]lthough the Constitution vested control over the Territories in the Congress, its practical control was both confused and ineffective, making, the problem of enforcement of civil rights in the Territories more similar to the problem as it existed in the States than in the District of Columbia.
Id. at 430, 93 S.Ct. at 609. The court's ruling that the Distric of Columbia was not within § 1983 rested upon the unique ability of Congress to monitor the activities of local officials at the national seat of government. Id. at 429-430, 93 S.Ct. at 608-609 Six years later, Congress overruled Carter by amending § 1983 to include the District of Columbia. See generally H.R.Rep. No. 96-548, 96th Cong. 1st Sess., reprinted in 1979 U.S.Code Cong. & Ad. News 2609. —
When Congress initially passed § 1983 the United States had no insular dependencies. The territories under United States jurisdiction at that time were all "incorporated territories" destined for statehood. See District of Columbia v. Carter, 409 U.S. at 431-432, 93 S.Ct. at 610. The only application of § 1983
Congress intended to prevent the violation of constitutional rights by federally appointed territorial officials located beyond effective control or supervision by the national government. Congress viewed this need as particularly pressing in light of the territory's dependent state of "pupilage" and the "transitory nature of the territorial condition." District of Columbia v. Carter, 409 U.S. at 431-432, 93 S.Ct. at 610. These same considerations forcefully apply with respect to the Trust Territory. The Interior Department's stated policy has been to encourage autonomy in territorial governments including the Trust Territory government. See Van Cleve, supra, at 144-149. As a consequence of this
For the reasons above, the Court holds that the Trust Territory of the Pacific Islands is a "Territory" for purposes of § 1983.
3. The Trust Territory Government and the High Commissioner as Suable "Persons" Under § 1983
The final inquiry is whether the Trust Territory government and the High Commissioner are suable "persons" under § 1983. The Court concludes that they are. As indicated above, the Trust Territory government's common law immunity neither extends into federal court nor insulates it against actions alleging violations of federal law. See notes 66-67 and accompanying text. Moreover, in Monell v. Department of Social Services the Supreme Court held that local government bodies and local government officials may be sued in their official capacities under § 1983. 436 U.S. at 688-690 and n.55, 98 S.Ct. at 2034-2036 and n.55. The Trust Territory government is not a municipal corporation as was the defendant in Monell. Nevertheless, its relationship to the United States government, like that of other territorial governments created pursuant to congressional authority
D. Title VI Claims
Title VI applies within the NMI to the Trust Territory government and the High Commissioner for the reasons stated in Part V-B-l-a & b, supra. Defendants urge dismissal upon the additional ground that Title VI does not create private causes of action. Neither the Supreme Court nor the Ninth Circuit has squarely decided this issue, and the holdings from other lower courts are inconclusive
This case does not require the Court to reach the question of whether Title VI generally affords a private right of action. On the basis of 42 U.S.C. § 2000d-3, the Court holds that
E. Title VII Claims
Title VII applies within the NMI to the Trust Territory government and the High Commissioner under the rationale expressed in Part V-B-l-a & b, supra. Title 42 U.S.C. § 2000e(i) includes the fifty states and Guam within the definition of the "States" to which Title VII applies. Under Covenant § 502(a)(2), the NMI also is a "State" for purposes of Title VII.
Although defendants' other arguments lack me'rit'.
Plaintiffs cannot maintain any of their civil rights acts claims against the United States or the Interior defendants. The Court dismisses the § 1981, § 1983 and Title VI for lack of subject matter jurisdiction. It grants defendants summary judgment on the Title VII claim.
A. § 1981 Claims
The Court's conclusion that it lacks jurisdiction over' plaintiffs' § 1981 claim rests upon its analysis of Bowers v. Campbell, 505 F.2d 1155 (9th Cir. 1974) and Brown v. General Services Administration. 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). In Bowers, the Ninth Circuit held that § 1981 waives the United States' governmental immunity where plaintiff avers ultra vires conduct by a federal official. 505 F.2d at 1158. Although plaintiffs allege omissions and negligent supervision '~y the Interior defendants, they do not allege any direct ultra vires action by the United States or the Interior defendants which brings this case within Bowers. Moreover, Bowers is unhelpful to plaintiffs in light of Brown. In Brown, the Supreme Court ruled that Title VII is the exclusive remedy for federal employment discrimination. 425 U.S. at 828-829; 96 S.Ct. at 1966. The court clearly predicated this holding upon the rationale that the United States is not subject to suit under § 1981. See id. at 823-824,
B. § 1983 Claims
The § 1983 claims must be dismissed because they operate only against the United States. 373 U.S. at 621 83 S.Ct. at 1007. As plaintiffs concede,
C. Title VI Claims
Plaintiffs' Title VI claims must be dismissed. Title VI does not authorize private suits against the United States, Cabinet departments, or federal agency officials. Drayden v. Needville Independent School Dist., 642 F.2d 129, 133 n.6 (5th Cir. 1981); Craft v. Board of Trustees. 516 F.Supp. 1317, 1327 (N.D.Ill. 1981).
The United States, the Interior Department and the Interior Secretary are entitled to summary judgment on the Title VII claims. When properly filed against the head of the employing federal agency
A. Claims Against the Trust Territory Government and the High Commissioner
The Court determines that it has subject matter jurisdiction over plaintiffs' claims against the Trust Territory government and the High Commissioner under the equal protection clause of the Trust Territory Bill of Rights (1 T.T.C. § 7).
Section 7 does not afford protection against the United States government. A contrary argument might have been plausible during the era in which there was no territorial legislature. This argument would have had to overcome authority indicating that territorial laws enacted by Congress itself or under congtes.-sional delegation are laws of the territory rather than laws of the United States. See Part V-C , supra. The reenactment of § 7 by the Congress of Micronesia reinforces the Court's'conclusion that § 7 is not a restraint upon the United■States government. The § 7 claims against the United States and the Interior defen- ' dants therefore are dismissed for lack of subject matter jurisdiction.
For the reasons stated above, the Court rules as follows on defendants' motions:
1. Motions by the Trust Territory government and the High Commissioner:
The Court denies defendants' dismissal and summary judgment motions with respect to plaintiffs' Trusteeship Agreement, § 1981, and § 1983 claims. The Court grants defendants' motion to dismiss plaintiffs' Title VI and Title VII claims for lack of subject matter jurisdiction.
2. Motions by the United States, the Interior Department and the Interior Secretary:
The Court grants defendants' motions to dismiss the monetary Trusteeship Agreement claims, § 1981 claims, § 1983 claims, Title VI claims, and Trust Territory Code Bill of Rights equal protection claims. The Court denies dismissal and grants summary judgment to defendants on plaintiffs' Title VII claims. The Court denies defendants' dismissal and summary judgment motions as to plaintiffs' non-monetary Trusteeship Agreement claims.
No later than 4:30 p.m. on April 29, 1983, the parties shall individually file written statements with the Court proposing a date for the commencement of evidentiary hearings on class certification.
~l Date
Trusteeship Agreement for the Former Japanese Mandated Islands, July 18, 1947, 61 Stat. 3301, T.I.A.S. No. 1665.
United Nations Charter, June 26, 1945, 59 Stat. 1031, T.S. No. 993.
Executive Order No. 119 continued and revised pay scales adopted in previous executive orders which were in accordance with Trust Territory Public Law NO. 6-65 (1975). Public Law No. 6-65 continued authority originally conferred by Public Law No. 4C-49, 61 T.T.C. § 10(1)(1972). The High Commissioner issued Order 119 pursuant to authority claimed' under Interior Department Secretarial Order No. 3039, 44 Fed.Reg. 28116 (1979). The stated purpose of Order 3039 is to maximize and to ensure self-government by the Federated States of Micronesia, the Republic of Palau and the Republic of the Marshall Islands pending termination of the Trusteeship Agreement. Section 3.a.(8) of Order 3039 indicates that the High Commissioner may "hire such professional and administrative staff as may be necessary to carry out his duties and responsibilities and to organize the Office of High Commissioner so as to enable him to effectively carry out those responsibilities ."
The Trust Territory government's disparate pay scales have been controversial for many years. See generally D. McHenry, Micronesia: Trust Betrayed, 235, 238 (1975)(appending executive agency report); Mink, Micronesia: Our Bungled Trust, 6 Tex. Int'l L.J. 181, 187 (1971).
Although neither the original Complaint nor the First Amended Complaint specifies whether plaintiffs sue the High Commissioner and the Interior Secretary officially or individually, the Court concludes that plaintiffs sue the defendant officers only in their official capacities. The test is whether a monetary judgment would be paid from the officers' personal funds or by the Trust Territory or United States governments. See Stafford v. Briggs, 444 U.S. 527, 542 n.10, 100 S.Ct. 774, 784 n.10, 63 L.Ed.2d 1 (1980). Plaintiffs allege pay scale , discrimination pursuant to an established governmental policy.
Although plaintiffs have moved for class certification, the Court suspended certification proceedings during the pendency of defendants' dismissal and summary judgment motions. The pre-certification disposition of these motions is particularly appropriate in an employment discrimination class action because it facilitates the determination of the proper scope of judicial inquiry. Garcia v. Rush-Presbyterian-St. Luke's Medical Center, 80 F.R.D. 254, 260, [N.D.Ill. 1980].
The Court's use of the term "Micronesian" in this decision is a concession to literary convenience which does not foreshadow a grant of plaintiffs' motion to certify the class. One of defendants' professed grounds for denying class certification is that the term lacks definitional precision. The use of the term here comports with prior employment of the words "Micronesia” and "Micronesian" by courts and the executive branch to respectively denote the geographic area and the indigenous people of the Trust Territory. See, e.g., Gale v. Andrus, 643 F.2d 826, 828, 831 (D.C.Cir. 1980); Ralpho v. Bell, 569 F.2d 607, 612-613 and n.9. reh.denied 569 F.2d 636 (D.C.Cir. 1977); People of Saipan v. United States Department of the Interior, 502 F.2d 90, 93 (9th Cir. 1974), cert.denied 420 U.S. 1003, 95 S.Ct. 1445, 43 L.Ed.2d 761 (1975); Commonwealth of the Northern Mariana Islands: Hearing on H.J. Res. 549 Before the United States Senate Committee on Foreign Relations, 94th Cong. 1st Sess. 183 (1975)(Senate Foreign Relations Committee Hearing on H.J.Res. 549)(Secretary of Defense Schlesinger). Defendants themselves employ the terms "Micronesia" and "Trust Territory" as synonyms. See Defendants' Joint Opening Memorandum In Support Of Original Motions at 2, lines 25-27; Trust Territory and High Commissioner's Reply Memorandum at 5, line 3.
The United States and the Interior defendants erroneously argue that plaintiffs allege only national origin discrimination. Under the review standards which govern these motions, the Court must construe the complaint in plaintiffs' favor. See Part II, infra. When so interpreted, the complaint satisfactorily albeit
Neither plaintiffs' First Amended Complaint, their motion memoranda nor their oral arguments suggest that they assert Charter rights other than rights under Articles 73a, 7.6b, and 76c, which delineate basic trusteeship responsibilities. See note 10. Because the Trusteeship Agreement subsumes and amplifies these responsibilities, this case does not present the question of whether the Charter alone is independently enforceable. See People of Saipan, 502 F.2d at 97.
The original Complaint under § 1983 alleged violations of the Trusteeship Agreement, the United Nations Charter, and the federal constitutional provisions and statutes cited in the text. It did not specify which Trusteeship Agreement or Charter articles were allegedly violated. The First Amended Complaint under § 1983 re-alleged as Count I the original Complaint's federal law causes of action, including averments of non-specific Trusteeship Agreement and United Nations Charter violations. It added as Count II: (1) specific, references to Trusteeship Agreement Article 6.3 and United Nations Charter Articles 73a, 76b, and 76c; and (2) the Trust Territory Bill of Rights Claims summarized above. The thrust of Count II is that defendants have violated their own statutes and regulations.
The Trust Territory and the High Commissioner object on grounds of relevancy and hearsay to appendices attached to plaintiff Manglona's affidavit, which-plaintiffs annex to their opposition to defendants’ original motions. The appendices consist of letters and memoranda written by the affiant, two letters addressed to and received by the affiant, and a newspaper article. The objection is overruled as to all letters and«memo-randa and sustained as to the newspaper article.
Paragraphs four and five of the sworn affidavit authenticate the letters and memorandum on facts within the affiant's personal knowledge. Thus, they satisfy Rule 56(e)'s requirements. See. e.g., U.S. v. Dibble. 429 F.2d 598, 601-602 (9th Cir. 1970) 10 Wright & Miller, Federal Practice & Procedure: Civil § 2777 at 485-486 (1973). This material documents the affiant's attempts to obtain redress from the High Commissioner and other federal officials. These unsuccessful attempts are facts of consequence to the disposition of plaintiffs' Trusteeship Agreement claims against the United States and the Interior defendants. The
The letters and memoranda are not hearsy. Hearsy is a statement, other than one made by the defendant under oath at a trial or hearing, offered to prove the truth of the statement's content. Anderson v. U.S., 417 U.S. 211, 220 n.8, 94 S.Ct. 2253, 2260 n.8, 41 L.Ed.2d 20 (1974). Plaintiffs offer the letters and memoranda to demonstrate attempts to secure administrative relief rather than to prove the truth of the documents' content. See Plaintiffs' Memorandum Opposing Defendants' Original Motions at 8. Moreover, two of the letters are replies to plaintiff Manglona from Interior Department and Health, Education and Welfare Department officials. Under Federal Rule of Evidence 801(d)(2)(A) and (D), these reply letters are non-hearsay admissions by a party opponent. See Aumiller v. University of Delaware, 434 F.Supp. 1273, 1290 (D.Delaware 1977).
Plaintiffs apparently offer the newspaper article solely for the truth of its content. It must be excluded because it consists of unexcepted hearsay.
The NMI has chosen formal political union with the United States through the Covenant-based commonwealth status referred to in the text. The Caroline Islands and the Marshall Islands are now politically denominated as the Federated States of Micronesia, the Republic of Palau and the Republic of the Marshall Islands. These newly emerged states have elected the more autonomous status of free association, which does not involve political union with the United States. See generally McHenry, supra, note 4, at 99-101, 116, 131, 144-146, 165-169, 179-180, 183-184; Armstrong, Strategic Underpinnings of the Regime of Free Association: The Negotiations for the Future Political Status of Micronesia, 7 Brooklyn Int'l L.J. 179 (1981)(Armstrong); Clark, Self-Determination and Free Association Should the United Nations Terminate the Pacific Islands Trust?. 2l ttarv. Int'1 L.J. I (1981) (Clark): Green, Termination of the Pacific Islands Trusteeship, 9 Tex. Int'l L.J. 175. 180-196 (1974): Note. Self-Determination and Security in the Pacific: A Study of the Covenant Between the United States and the Northern Mariana Islands, 9 N.Y.U. d. Int"l L." Po 1. 277, 288-301 (1976)
' -. Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America, Pub.L.No. 94-241, 90 Stat. 263, reprinted in 48 U.S.C. § 1681 note (1976).
See also note 16, infra.
The United Nations Trusteeship system has its primary toots in the post-World War I League of Nations mandates system and in nineteenth century European agreements for the administration of West Africa. See generally J. McNeill, The Strategic Trust Territory in International Law 86-169, 470-473 /(doctoral thesis reproduced by University Microfilms Interational', 1976); J. Murray, The United Nations Trusteeship System 7-22, 239-241 (1957). A "strategic" trusteeship differs from a "non-strategic" trusteeship in that the Security Council exercises the United Nations' supervisory functions. H. Kelsen, The Law of the United Nations 649-651 (1966); Murray, supra, at 77. The United States retains veto power in the Security Council. See People of Saipan. 502 F.2d at 97 n.9. The United Nations Charter's distinction between "strategic" and "non-strategic" trusteeships originated in United States policy as a compromise between .military proposals for the annexation of former Japanese-controlled Pacific Islands’ and State Department proposals for the international management of non-self-governing areas. See generally McHenry, supra note 4 at 32; McNeill, supra, at 20-44; Murray, supra, at 24-30; Green, America's Strategic Trusteeship Dilemma - Its Humanitarian Obligations, 9 Tex. Int'l L.J. 19. 26-33 (1974).
Congress, the executive branch, the United Nations Security Council and commentators have expressed uncertainty about the precise locus of sovereignty in the Trust Territory. See generally Trusteeship Agreement For The Territory Of The Pacific Islands: Hearing on S.J.Res. 143 Before the United States Senate Committee on Foreign Relations, 80th Cong. 1st Sess. 8, 16-17, 21-22 (1947) (Senate Hearing on S.J.Res. 143); 2 U.N. SCOR (16th mtg.) at 467-468, 471-472, 477-478 (1947); J. Brierly, The Law of Nations 188-189 (1963); Kelsen, supra note 15, at 688-694; Sayre, Legal Problems Arising From The United Nations Trusteeship System. 42 Am.J.Int'l L. 263, 268-272 (1948); Note. A Macrostudy of Micronesia: The Ending of a Trusteeship. 1972 N.Y.L.F. 139, 148-149, 204-207 (1972) (A Macrostudy of Micronesia); Note, Trusteeship Compared With Mandate, 49 Mich.L.Rev. 1199, 1204-1208, 1210 (1951).
Under Trusteeship Agreement Article 6.1, the United States ■must promote the development of the Trust Territory's inhabitants toward self-government or independence in accordance with their freely expressed wishes. Note 2, infra. The fulfillment of that obligation is the most fundamental responsibility imposed by the Trusteeship Agreement. See Gale, 643 F.2d at 830; Northern Mariana Islands: Hearing on H.J.Res. 549 Before the Subcommittee
See also Callas v. United States, 253 F.2d 838, 841 (2d Cir. 1958) (Hincks, Circuit Judge, concurring), cert.denied 357 U.S. 936, 78 S.Ct. 1384, 2 L.Ed.2d 1550 (1958) (concluding that the United States has assumed "a fiduciary responsibility to the United Nations... through an express trust agreement"); People of Saipan v. United States Department of the Interior, 356 F.Supp. 645, 660 (D.Haw. 1973)(describing as "apt" the analogy between the United States’ trust responsibility to Micronesians and the United States' fiduciary relationship with Indians, but refusing to apply concomitant fiduciary principles on the ground repudiated on appeal by the Ninth Circuit - that the Trusteeship Agreement is not judicially enforceable); McNeill, supra, note 15, at 118-119 (describing the United States' fiduciary relationship with Indians as "by far the classic illustration" employed to trace the roots of the League of Nations' mandates system upon which the present trusteeship system is based, but questioning the appropriateness of supporting the analogy on the basis of Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L.Ed. 25 (1831), in which the court invoiced trust doctrines to prevent rather than facilitate the protection of Indian rights). Because the United States and its Trust Territory government have duties under the Trusteeship Agreement to act for the benefit of Micronesians, they stand in a fiduciary relationship with Micronesians. See Restatement, Second, Trusts § 2, comment b (1959).
The Trusteeship Agreement was drafted by the State, War and Navy Departments with the.assistance of the Joint Chiefs of Staff. S.Rep.No. 471, 80th Cong. 1st Sess. 3.(1947); H.R.Rep.No. 889, 80th Cong. 1st Sess. 3, reprinted in 1947 U.S.Cong.Serv. 1317, 1319. The Security Council approved the instrument with three minor amendments. See generally McNeill, supra note 15, at 214-217, 225-226, 228; Robbins, United Nations Trusteeship For The Territory Of the Pacific Islands, Department of State Bulletin 788-789 (May 4, 1947).
Trusteeship Agreement Article 3 states:
(The United States) shall have full powers of administration, legislation, ánd jurisdiction over the territory subject to the provisions of this agreement, and may apply to the trust territory, subject to any modifications which the (United States) may consider desirable, such of the laws of the United States as it may deem appropriate to local conditions and requirements.
See Part IV-A-2, infra. Ralpho v. Bell identified the constitutional source of congressional authority to legislate, for the Trust as Article IV, Section 3, Clause 2 (the Territorial Clause). See 569 F.2d at 618. As Ralpho recognized, Congress' power under the Territorial Clause extends to areas' over which the United States lacks de lure sovereignty. See Vermilya-Brown Co. v. Connell. 335 U.S. 377, 381, 69 S.Ct. 140, 142-143, 93 L.Ed., 76 (1948) reh.denied 336 U.S. 928, 69 S.Ct. 652, 93 L.Ed. 1089 (1949). Commentary has alternatively suggested that the constitutional basis of Congress' legislative authority over the Trust Territory is Article I, Section 8, Clause 18 (the Necessary and Proper Clause). See Note,' Executive Authority Concerning The Future Political Status of the Trust Territory of the Pacific Islands. 66 Mich. L.Rev. 1277, 1281 n.6 (1968).
Executive Order No. 11021, 27 Fed.Reg. 4409 (1962).
The Interior Secretary appointed both the High Commissioner and the High Court until 1967. , Since 1967 the High Commissioner has been appointed by the President and confirmed by the Senate pursuant to 48 U.S.C. § 1681a. The Interior Secretary still retains the power to appoint the High Court.
As early as 1950 the NMI expressed the desire for permanent political union with the United States. See S.Rep.No. 433, supra note 24, at 45. See also id. at 137-158; Northern Mariana Islands: Hearing on S.J.Res. 10/ Before the United States Senate Committee on Interior and Insular Affairs, 94th Cong. 1st Sess. 251-253 (1975)(Senate Hearing on S.J.Res. 107)(Mariana Islands District Legislature resolutions endorsing political association with the United States) .
The people of the NMI approved the Covenant hy a 78.8 percent vote in a plebiscite conducted on June 17, 1975. See generally S.Rep.No. 433, supra note 24, at 63-64; id. at 413-414 (letter to President Ford from the United States’ Plebiscite Commissioner).
See generally Branch, Constitution of the Northern Mariana Islands: Does A Different Cultural Setting Justify A Different Constitutional Standard?, 9 Denver J. Int'l L. Pol'y 35 (1980); Willens & Siemer. Constitution of the Northern Mariana Islands: Constitutional Principles and Innovation in a Pacific Setting, 65 Georgetown L.J. 1373 (1977).
See note 35, infra.
See note 45, infra.
See note 116, infra.
See note 89, infra.
The Trust Territory government's headquarters was located in Hawaii between 1947 and 1954 and in Guam from 1954 to 1962. See S.Rep. No. 433, supra, note 24, at 29; A Macrostudy of Micronesia. supra note 16, 18 N.Y.L.F. at 150. When the Interior Department assumed jurisdiction over Saipan from the United States Navy in 1962, the Trust Territory government established its headquarters there. Van Cleve, supra note 25, at 140 n. According to Van Cleve who once directed the Interior Department's former Office of Territorial Affairs, Saipan technically has always been a "provisional" capital because in 1952 President Truman designated Dublon in the Caroline Islands atoll of Truk as the official territorial capital. Id..
. Defendants' arguments on other issues include the assertion that federa^/legislation must specifically name the Trust Territory government in order to apply to or affect the Trust Territory government. Although defendants have not expressly advanced this contention as to the Covenant's judiciary provisions and implementing legislation, the Court has. considered the contention with reference to those statutes and rejected it for the same reasons elaborated in Part V-B-l (a), infra.
Covenant § 402(a) and its implementary counterpart 48 U.S.C. § 1694a(a) state that the District Court for the NMI:
shall have the jurisdiction of a district court of the United States. Except that in all causes arising under the Constitution, treaties, or laws of the United States, it will have jurisdiction regardless of the sum or value of the matter in controversy.
The District Court for the NMI was created by Congress pursuant to its authority to regulate territories under Article IV, Section 3, Clause 2 of the United States Constitution. See fenerally Camacho v. Civil Service Commission, 666 F.2d 1257. 260-1261 (9th Cir. 1982); Sablan v. Santos. 634 F.2d 1153. 1155 (9th Cir. 1980).
See, e.g., S.Rep.No. 433, supra note 24; Marianas Political Status Commission, Section-By-Section Analysis of the Covenant to Establish a Commonwealth of the Northern Mariana Islands (MPSC Analysis) 26 (19/3), reprinted in Senate Hearing on S.J.Res. 107, supra note 26, at 384; Vol. I, Briefing Papers For The Delegates To The Northern Marianas Constitutional Convention 21 n.22 (Office of Transition Studies and Planning, NMI Government, 1976).
Covenant § 505 became effective on January 9, 1978 pursuant to the presidential proclamation mandated by § 1003(b). It states:
The laws of the Trust Territory of the Pacific Islands, of the Mariana Islands District and its local municipalities, and all other Executive and District*527 orders of a local nature applicable to the Northern Mariana Islands on the effective date of this Section and not inconsistent with this Covenant or with those other provisions of the Constituition, treaties or laws of the United States applicable to the Northern Mariana Islands will remain in force and effect until and unless altered by the Government of the Northern Mariana Islands (emphasis added).
The Covenant's legislative history largely characterizes the Covenant as a "statute" or a ^Federal Relations Act" rather than as an international agreement. See, e.g., S.Rep.No. 433, supra note 24, at 91; MPSC Analysis 128, reprinted in Senate Hearing on S.J.Res. 107, supra note 26, at 486; Senate Foreign Relations Committee Hearing on H.J.Res. 549, supra note 7, at 64-65 (testimony by Deputy Secretary of State Ingersoll). Yet, commentary suggests that the Covenant's approval by both houses of Congress merely "finesses" the question of whether it is actually a treaty or an international agreement. See Clark, supra note 12, 21 Harv. Int'l L.J. at 14-15 n.72, 18 n.93, 32-33 n.197. The instant motions do not necessitate a definitive statement on the Covenant's precise legal status. The major issue here is the suppression and control of the Trust Territory government's authority by the Covenant's provisions concerning judicial power and applicable federal laws. For purposes of resolving that issue, the Court does "not think that the distinction between a treaty and a statute has great significance." Blake v. Arnett. 663 F.2d 906, 909 (9th Cir. 1981).
Congressional committee reports are among the most persuasive indicia of legislative intent. Housing Authority of Omaha v. U.S. Housing Authority, 468 F.2d 1, 7 n.7 (10th Cir. 1972). cert.denied 410 U.S. 927, 93 S.Ct. 1360, 35 L.Ed.2d 588 (1973). They accordingly receive greater weight in statutory analysis than less formal legislative history material. I.T.T. Corp. v. Gen. Tel. & Elect. Corp., 518 F.2d 913, 921 (9th Cir. 1975); see United States v. International Union, Etc., 352 U.S. 567. 585. 77 S.Ct. 529, 538, 1 L.Ed.2d 563 (1957).
Senate General Legislation Subcommittee Hearings on H.J.Res. 549, supra note 16; Senate Foreign Relations Committee Hearing on H.J.Res. 549, supra note 7; Senate Hearing on S.J.Res. 107, supra
Title 6 T.T.C. § 357 (1970); Van Cleve, supra note 25, at 137. But cf. King v. Morton, 520 F.2d 1140, 1143 and n.3 (D.C.Cir. 1977)(reserving the question of whether the United States Supreme Court has appellate jurisdiction over Samoan court decisions notwithstanding 15 Am.Samoa Code § 5104 (1973), which states that decisions by the Appellate Division of the High Court of American Samoa are final.
Section 4 of the Northern Mariana Islands Constitution s Schedule on Transitional Matters, reprinted in Willens & Seimer, supra note 28, at 1479, states in applicable section:
Civil and criminal matters pending before the High Court of the Trust Territory of the Pacific Islands on the effective date of the Constitution that involve matters within the jurisdiction of the Commonwealth Trial Court of (sic) the United States District Court for the Northern Mariana Islands shall remain within the jurisdiction of the High Court until finally decided.
This case indisputably is beyond the High Court's § 4 jurisdiction. First, this action was not pending before the High Court on the NMI Constitution's operative date. Plaintiffs filed their original complaint in 1981, more than three years after that date. Second, with the exception of plaintiffs' equal protection claims under the Trust Territory Bill of Rights, this case arises exclusively under federal law.
The NMI Constitutional Convention adopted § 4 on December 1, 1976. On that date the delegates weighed alternative jurisdictional arrangements to be implemented in the event a federal district court was not available on the constitution's effective date to exercise jurisdiction of local law actions as allowed by the Covenant and as defined in Acticle IV of the draft t|MI Constitution.
Delegate Ramon Villagomez: Do you know if we can after the effective date of the Constitution continue to file cases in the High Court of the Trust Territory?
Mr. Willens: I would think not, as it is presently written. Cases arising after the effective date of the Constitution would have to be filed either in the Commonwealth Trial Court or the Ü.S. District Court.
Delegate Ramon Villagomez: Would the Trust Territory High Court not be sitting on Saipan?
Mr. Willens: That would be, obviously, up.to that court. I expect that that court would remain here but that, along with other government institutions in the Trust Territory, it might at some point leave Saipan for one of the other districts. I don't think there is anyway we could insure that the Trust Territory courts would be open to your cases. It might be possible to provide here that if no U.S. District Court is provided, that ' would be available as an alternative for you (emphasis added).
Vol. I, Journal of the Northern Mariana Islands Constitutional Convention of 1976 256 (1976). The convention then adopted $ 4 without incorporating the suggested provision for contingent High Court jurisdiction. Id. at 258. The legal consultant had previously recommended that Article IV should provide that "the legislation will have the authority to give the Commonwealth Trial Court all jurisdiction" if a federal district court was unávailable. Id. at 255 (emphasis in original). Sections 2 and 3 of Artcile IV contain language to that effect. See Willens & Seimer, supra note 28, at 1471. See generally Analysis of the Constitution of the Northern Mariana Islands 105, 107 (1976), adopted by Res.No. 16, Northern Mariana Islands Constitutional Convention (1976).
Covenant § 402(b) describes the local law trial jurisdiction of the District Court for the NMI. Section 1694a(b) implements § 402(b). These statutes provide in relevant part:
*530 The district court shall have original jurisdiction in all causes in the Northern Mariana Islands not... [arising under federal law] jurisdiction over which is not vested by the Constitution or laws of the Northern Mariana Islands in a court or courts of the NMI.
The Trust Territory also resisted subject matter jurisdiction in Sabían Construction on the ground that it is a foreign state immune from suit in United States courts. 526 F.Supp. at 137-138. The Trust Territory has not urged the contention here.
Neither this decision nor Sabían Construction suggests that the characterization of the Trust Territory government's authority as "delegated" United States authority also applies to the authority of the locally constituted governments of the NMI and other Micronesian areas.
The enactment‘of Trust Territory organic legislation was contemplated literally from the day the trusteeship began. See. e.g,, Public Statement of President Truman (July 18, 1947), Appendix A to Plaintiffs' Memorandum Opposing Defendants' Renewed Motions ("I have asked the Department of State to prepare, in consultation with other interested Departments, suggestions for organic legislation for the trust territory. It is expected that these suggestions will be ready for presentation to the Congress at its next session."). See also Note, Customs, Codes and Courts in Micronesia, 5 Stan.L.Rev. 42, 48-53 (1952)(discussing Trust Territory organic legislation introduced in Congress in 1952).
Citing the Covenant's judiciary provisions and § 505, the Trust Territory government advocated exactly this position in the High Court within weeks after the NMI Constitution took effect. See Mariana Islands Airport Authority v. Trust Territory of the Pacific Islands, Civil Action No. 9-78, Order at 4-5 (H.C.Tr.Div. February 13, 1978), incorporated as Appendix A to Response of Trust Territory and High Commissioner to Plaintiff's Memorandum Opposing Defendants' Original Motions.
It is noteworthy but non-controlling that the High Court has acknowledged its loss of NMI jurisdiction. In Sablan v. Sablan. CV App. No. 331 (H.C.App.Div. 1980), the High Court's Appellate
It is unclear whether Trusteeship Agreement claims would be cognizable in the High Court even if the High Court had NMI jurisdiction. Shortly after People of Saipan, the High Court criticized the Ninth Circuit's decision and probably reaffirmed its long-standing contrary view that the Trusteeship Agreement is not a trust capable of judicial enforcement. Trust Territory v. Lopez, 7 T.T.R. 449, 452-454 (H.C.App.Div. 1975) (semble). Commentary has persuasively questioned the High Court's position. See Olsen, Piercing Micronesia's Colonial Veil: Enewetak v, Laird and People of Saipan v. Department of Interior, 15 Columbia J. of Transnat’l L. 473, 477-490 (1976). Moreover, the NMI Commonwealth Trial Court has repudiated Lopez' interpretation of People of Saipan. See E.D.L.F. v. Inos, Civil Action No. 81-05 Order at 10-11 (C.T.C. Nov. 25, 1981(dictum) .
See Hasbrouck v. Texaco, Inc., 663 F.2d 930, 933 (9th Cir. 1981), cert.denied U.S. _, S.Ct. _, 74 L.Ed.2d 65 (1982).
See, e.g., Harris v. Boreham, 233 F.2d 110, 113-116 (3d Cir. 1956)(Virgin Islands Municipality of St. Thomas & St. John). See also Report of the Drafting Committee on the Negotiating History of the Covenant C-2 (1975), reprinted in S.Rep.No. 433. supra note 24, at 404 (establishing the non-Tederal agency status of the NMI commonwealth).
See also People of Saipan. 502 F.2d at 94 n.1 (noting the Interior Department's traditional position that "territorial . governments, under the jurisdiction of the Secretary of the Interior, are not agencies or instrumentalities of the executive branch of the Federal Government... [and] that the territorial governments are not organized entities of the Department of the Interior"); Porter, 496 F.2d at 589 (noting the Comptroller General's conclusion that "none of the territorial governments, including the Government of the Trust Territory, are regarded as federal agencies or instrumentalities"); Bell v. Commissioner of
Even a private entity may be an agent of the United States for certain statutory purposes without being a component part of the United States government and without being specifically labeled as an "agent". See, e.g., Mitchell v. Occidental Insurance Medicare, 619 F.2d 28, 29-30 (9th Cir. 1980); Kuenstler v. Occid. Life Insurance Co., 292 F.Supp. 532, 534 (C.D.Calif. 1968)(42 U.S.C. § 1395u).
Note 21, supra.
People of Saipan, 502 F.2d at 98 n.10 ("the High Commissioner's authority'does not come from the people of the Trust Territory'...")(citation omitted).
In addition to the Ninth Circuit authority discussed in the text, defendants rely upon Gale v. Andrus 643 F.2d at 830-833, Porter v. United States, 496 F.2d at 589-590, and Callas v. United States, 253 F.2d at 840-841. These three decisions do not bind Judges in the Ninth Circuit. See note 103, infra■ Gale held that for purposes of the Freedom of Information Act the Trust Territory government is an exempt United States territorial government rather than a federal agency covered by the statute. See note 97, infra. Porter turned upon contractual privity rather than statutory construction. The court decided that the Trust Territory government "is not an agency of the~United States for contract purposes." 496 F.2d at 489. Callas held that the Trust Territory is a "foreign country" under a jurisdictional exception to the Federal Tort Claims Act. See also Kuhn v. United States, 541 F.Supp. 567, 568-569 (C.D.Calif. 1982); Brunell v. United States, 77 F.Supp. 68, 72 (S.D.N.Y. 1948)(dictum)(same conclusion). But see Sablan Construction, 516 F.Supp. at 138 n.8 (dictum questioning Brunell1s present validity). Neither Gale, Porter nor Callas involved Trusteeship Agreement claims or held that the Trust Territory government is not "doing the work of the United States" (496 F.2d at 589) with respect to the fulfillment of Trusteeship Agreement obligations.
McComish v. Commissioner of Internal Revenue, 580 F.2d 1323, 1330 (9th Cir. 1978); Sablan Construction, 526 F.Supp. at 140 n. 16.
Sablan Construction, 526 F.Supp. at 140-141 and nn.17-18; People of Saipan, 356 F.Supp. at 659; Calvo v. Trust Territory of the Pacific Islands, 4 T.T.R. 506, 512 (H.C.App.Div. 1969); Alig v. Trust Territory of the Pacific Islands, 3 T.T.R. 603, 615 (H.C.App.Div. 1967).
Sablan Construction, 526 F.Supp. at 140.
The Trust Territory has been held to be a "foreign country" under an exception to Federal Tort Claims Act jurisdiction. See note 56, supra. It has also been found to be a "foreign state" under the Immigration and Nationality Act. Application of Reyes, 140 F.Supp. 130, 131 (D.Haw. 1956). Yet, the Trust Territory iá ■ part of "the Nation" covered by the National Environmental Policy Act. People of Enewetak v. Laird, 353 F.Supp. 811, 819 (D.Haw. 1973). One court also has held that the Trust Territory is not a "foreign state" for federal diversity jurisdiction purposes. World Communications Corp. v. Micronesian Telecommunications Corp., 456 F.Supp. 1122, 1124 (D.Haw. 1978). In a tederal constitutional case, a court determined that although the Trust Territory is not under United States sovereignty, it is "under United States control or possession such that it cannot be considered a foreign country." Senate hearing considered a foreign country." Thompson v. Kleppe, 424 F. Supp. 1263, 1267 (D.Haw. 1976); accord, People of Saipan, 356 F.Supp. at 655. During a Senate hearing on the Covena~ `executive~branch officials i~ claimed that document's status as an international agreement on the ground that "(t]he Marianas are not a foreign country." Senate Foreign Relations Committee Hearing on H.J.Res. 549 supra note 7, at 65 (revised testimony by Deputy Secretary of State Ingersoll); accord id. at 164 (written executive branch comment responding to Senator Hart's assertion that the Covenant is a treaty).
During its thirteen years of existence the Congress of Micronesia lacked the power to enact legislation inconsistent with the Trusteeship Agreement or other applicable United States laws. See Gale, 643 F.2d at 830; McComish, 580 F.2d at 1329; People of Saipan. 502 F.2d at 99.
See also Commonwealth of Puerto Rico v. Alfred Snapp & Sons, 632 F.2d 365, 368-370 (4th Cir. 1980), aff'd _ U.S. _, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982)(recognizing the Commonwealth of Puerto Rico's parens patriae standing to represent its citizens in an action implicating its "quasi-sovereign" economic interests as an "integral political subdivision").
When § 1694a(a) was enacted in 1977, the predecessor of § 1331 [former 28 U.S.C. § 1331(a)] required a federal question jurisdictional minimum of more than $10,000 in controversy. Section lé94a(a) was specifically designed to avoid § 1331(a)'s amount in controversy requirement. When Congress excised the requirement and reenacted § 1331(a) as § 1331 in 1980, § 1694a(a)'s exemption became superfluous. See generally Bauer v. McCoy, CV 81-0019 , Decision at 10-12 and n.21 (D.N.M. 1982)
In People of Saipan the Ninth Circuit described the Trustee-, ship Agreement as a "treaty" and an "international agreement." 502 F.2d at 97. The issue there was the Trusteeship Agreement's judicial enforceability rather -than its technical legal status as a "treaty" or an "international agreement", or other form of instrument. A treaty in the strict constitutional sense is an instrument approved by the Senate alona rather than by both houses of Congress. Weinberger v. Rossi, _, U.S. _, _, 102 S.Ct. 1510, 1514, 71 L.Ed.2d 715 (1982). The Trusteeship Agreement was approved by both the Senate and the House of Representatives.
Nevertheless, it is correct to characterize the Trusteeship Agreement as a "treaty" for purposes of § 1694a(a) federal question jurisdiction. In Altman v. U.S., 224 U.S. 583, 601, 32 S.Ct. 593, 597, 56 L.Ed. 894 (1912), the Supreme Court held that an international agreement approved by both houses of Congress was a "treaty" under a statute defining the Supreme Court's appellate jurisdiction. Neither the language nor the legislative history of § 1694a(a) indicates that its reference to "treaties" should be less flexibly construed than the reference in the Altman s tatute.
Of course, Congress has not imparted a precise meaning to the word "treaty". Weinberger, _ U.S. at _, 102 S.Ct. at 1515. Words have different shades of meaning, and the meaning-intended in a particular statute depends upon the statute's purposes and the circumstances and context in which its language is employed, rather than merely upon a consideration of the language alone. District of Columbia v. Carter, 409 U.S. 418, 420, 93 S.Ct. 602,
Plaintiffs' monetary Trusteeship Agreement claims against the Trust Territory government probably would be within § 1694a(a) jurisdiction even if that government were a component part of the United States government. In Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963), Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457. 93 L.Ed. 1628 (1949), and Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947), the Supreme Court developed the principle that a suit against a federal officer is barred as a suit against the United States if recovery would come from the public treasury. In suits brought against the Federal Housing Administration pursuant to 12 U.S.C. § 1702, the Dugan-Larson doctrine has not barred recovery against "funds in the possession and control of the agency." See generally Marcus Garvey Square v. Winston Burnett Const., 595 F.2d 1126, 1131 (9th Cir. 1979). The Trust Territory government maintains its own treasury. Moreover, the "well known rule" is that "funds appropriated to the Department of the Interior as grants to the Trust Territory lose their character as federal funds when paid over and mingled with Trust Territory Government local revenues." Trust Territory Attorney General's Opinion 67-2 at 3 (Nov. 1, 1967).
See Alig v. Trust Territory of the Pacific Islands, 3 T.T.R 603, 610-615 (H.C.App.Div. 1967).
Bauer, supra note 63, Decision at 24 n.49; People of Saipan, 356 F.Supp. at 659.
Kawananakoa was the primary authority invoked by the High Court when it announced the doctrine of Trust Territory government immunity. See Alig. 3 T.T.R. at 610-611.
Trusteeship Agreement Article 6.3 states that the United States shall:
promote the social advancement of the inhabitants and to this end shall protect the rights and fundamental freedoms of all elements of the population without discrimination; protect the health of the inhabitants; control the traffic in arms and' ammunition, opium and other dangerous drugs, and alcoholic and other spirituous beverages; and institute such other regulations as may be necessary to protect the inhabitants against social abuses...
As indicated in note 17, supra, the analogy between the United States' fiduciary relationship with Micronesians and its fiduciary relationship with Indians has received judicial and scholarly recognition. Because the general interpretive principles stated in the text suffice to dispose of the issue here, the Court has no occasion to determine the extent to which canons of construction applicable to Indian treaties also analogously apply to the construction of the Trusteeship Agreement.
During the United Nations Security Council's consideration of the Trusteeship Agreement the United States recorded its view that "the draft trusteeship agreement is in the nature of a bilateral contract between the United States, on one hand, and the Security Council on the other." 2 UN SCOR (116th mtg.) at 476 (1947).
Note 18, supra.
Title 1 T.T.C. § 103 incorporates the American Law Institute’s Restatements of the Law as Trust Territory common law. Section 103 remains part of NMI law pursuant to Covenant § 505, note 38, supra.
Defendants have argued that government immunity principles bar plaintiffs' monetary Trusteeship Agreement claims. Because the Court dismisses for the reason stated above, it does not address this argument.
Kester v. Campbell, 652 F.2d 13, 15 (9th Cir. 1981). cert. denied _ U.S. _, 102 S.Ct. 1008, 71 L.Ed.2d 298 (1982).
Beale v. Blount, 461 F.2d 1133, 1138 (5th Cir. 1972); Johnson v. Hoffman, 424 F.Supp. 490, 492-493 (E.D.Mo. 1977), aff'd 572 F.2d 1219 (8th Cir. 1978), cert.denied, 439 U.S. 986, 99 S.Ct. 579, 58 L.Ed.2d 658 (1978).
Bauer, supra note 63, Decision at 6.
The Tucker Act [28 U.S.C. § 1346(a)(2)] states in relevant section:
[D]istrict courts shall have original jurisdiction concurrent with the Court of Claims, of:
any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress,' or any regulation of an executive department, or upon any express or implied contract with the United States . . .
The Trusteeship Agreement is an Act of Congress. 61 Stat. 3301. A monetary claim under it may be within § 1346(a)(2) jurisdiction unless other jurisdictional problems exist.
Title 5 U.S.C. § 701-706. Although plaintiffs do not invoke the APA, the Court may note any statute which suports jurisdiction. See Part II, supra. The APA itself is not a grant of subject matter jurisdiction. Califano v. Sanders. 430 U.S.
Title 5 U.S.C. § 702 states in relevant part:
An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity under color of legal authority shall not be dismissed nor relief therein shall be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action and a judgment or decree may be entered against the United States...
See generally Schulthess v. United States, 694 F.2d 175, 177-179 (9th Cir. 1982); Beller v. Middendorf, 632 F.2d 788, 796-797 (1980), reh. denied 647 F.2d 80 (9th Cir. 1981). cert.denied, _ U.S. _, 101 S.Ct. 3030, L.Ed.2d 405 (1981); Glines v. Wade, 586 F.2d 675, 681 (9th Cir. 1978), rev'd on other grounds, 444 U.S. 348, 100 S.Ct. 594, 62 L.Ed.2d 540 (1980).
Affidavit of plaintiff Manglona, annexed to Plaintiffs' Opposition to Defendants' Original Motions, paragraphs 1, 3, 4, 6.
Id., paragraph 5.
. ' The second letter is from the Principal Deputy of the Office of Civil Rights in the former Department of Health, Educatior and Welfare. This letter informs plaintiff that the.Interior
The Interior Department's former Office of Territorial Affairs is now called the Office of Territorial and International Affairs.
i The Interior Department previously has manifested its awareness that it has the authority to directly dictate the Trust Territory government's employee pay scale policies. See S.Rep.No. 26 (May 21, 1971), reprinted in Journal of the Congress of Micronesia, 4th Cong. 4th Special Sess. 155 (May 1971)(describing a May 1969“ "policy statement” by the Interior Secretary in which the Secretary "promised that the Department of the Interior would seek to implement a policy of equal pay for equal work"); Mink, supra note 4, at 187 (same).
APA § 706(1) states:
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of th.e terms of an agency action. The reviewing court shall--
(1) compel agency action unlawfully withheld or unreasonably delayed...
Laguna Honda differs from this case in that plaintiff there did not initially pray for monetary relief against the United States. Nevertheless, the principle stated in Laguna Honda logically also applies when the district court first determines that it lacks jurisdiction over asserted monetary claims.
Covenant 502(a)(2) states in part:
*540 The following laws of the United States in existence on the effective date of this Section and subsequent amendments to such laws will apply to the Northern Mariana Islands, except as otherwise provided in this Covenant:
(2) Those laws... which are applicable to Guam and which are of general application to the several States as they are applicable to the several States.
See Covenant § 105, 503, 805. See also Covenant § 402(b) and § 403(b)(suggesting the inapplicability of federal laws which conflict with the Covenant's provisions concerning treatment of the District Court of the Northern Mariana Islands as a court of the. Northern Mariana Islands for purposes of determining jury trial and grand jury indictment requirements).
Plaintiffs do not concede that the NMI is the only place in which § 1981, § 1983, Title VI and Title VII apply to the Trust Territory government. Plaintiffs' Opposition Memorandum at 4.
Because § 1981 applies in both States and Territories, it is unnecessary to decide whether the NMI Commonwealth is a "State" or a "Territory" under the statute. Cf. Examining Board of Engineers, Architects and Surveyors v. Flores de Otero, 426 U.S. 572, 597, 96 S.Ct. 2264, 2279, 49 L.Ed.2d 65 (1976) (stating the same principle concerning the Commonwealth of Puerto Rico's status as a "State" or a "Territory" for purposes of federal jurisdiction under 28 U.S.C. § 1343(3) to enforce 42 U.S.C. § 1983
Note 19, supra.
Plaintiff's Memorandum Opposing Defendants' Original Motions at 3.
Defendants' Joint Memorandum Supporting Defendants' Original Motions at 10-14.
Title 5 U.S.C. § 552. The FOIA applies to "federal agencies" as defined in § 551(1).
The issue in Gale was whether the Trust Territory government is a federal agency which must comply with the FOIA. The majority held that the Trust Territory government is not. 643 F.2d at 830-832. All three members of the Gale court agreed that even if the Trust Territory is otherwise federal agency it is immune from the FOIA pursuant to a specific exemption for the governments of United States territories or possessions. Id. at 832-833; id. at 834 (Oberdorfer, District Judge, concurring in the result).
The majority found it "fully consistent to hold, as did the United States District Court for Hawaii, that the laws of the United States could apply to the Trust Territory only if Congress expressly so provided in the statute." 643 F.2d at 834. The district court decision to which the majority alluded was People of Enewetak, 353 F.Supp. 811 (D.Haw. 1973).
People of Enewetak's statutory analysis properly began with Trusteeship Agreement Article 3. 353 F.Supp. at 814-815, 817 n.12, 818-819. The United States Article 3 powers of administration, legislation and jurisdiction include the authority to apply federal legislation to the Trust Territory. See note 19, supra.
The court recognized four principles concerning the judicial application of federal legislation to the Trust Territory pursuant to Article 3. First, all federal laws do not necessarily or automatically apply to the Trust Territory. 353 F.Supp. at 815. Second, Congress must manifest an intention to include the Trust Territory within a statute's coverage before a court applies the statute to claims arising there. Id. Third, Congress usually indicates this intention by including the Trust Territory within a statute's definition of the term "State" or "United States". Id. and n.8. A problem of statutory construction arises when, as in People of Enewetak, the statute lacks a definitional section specifying the particular area or entities which are to be considered a "State" or part of the "United States". In these circumstances a fourth principle applies. The court must determine and effectuate Congress intent by investigating the fundamental .purposes, character and legislative history of the statute in question. Id..
.Title 42 U.S.C. § 4321 et seq.
643 F.2d at 834.
In People of Saipan, the district court similarly rejected the "specific inclusion'1 theory of statutory construction because it found the theory to be an unacceptably "mechanical rule." See 356 F.Supp. at 649-650.
Although judges in the Ninth Circuit may seek guidance in decisions by other courts and district courts, they are bound only by Supreme Court and Ninth Circuit precedent. Gunther v. Washington County, 623 F.2d 1303, 1309 (9th Cir. 1979), aff'd 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981); see Villines v. Harris, 487 F.Supp. 1278, 1279 n.1 (D.N.J. 1980).
See Gale, 643 F.2d at 832-833 (construing the Freedom of Information Act's exemption for- the governments of United States territories and possessions in light of the legislative history of a similar exemption under the Administrative Procedure Act); McComish, 580 F.2d at 1324-1328 (construing an income exclusion provision in the Internal Revenue Code in light of the provision's basic purposes, its legislative history and its prior judicial interpretation); Groves v. U.S., 533 F.2d 1376, 1378-1386 (5th Cir. 1976), cert.denied 429 U.S. 1000, 97 S.Ct. 529, 50 L.Ed.2d 611 (1977)(construing the same statute as McComish under a similarly expensive analytical approach but reaching a contrary result);' Sablan Construction, 526 F.Supp. at 138-140 and nn.13-14; 16-18 (construing 48 U.S.C. § 1694a(b) in light of 48 U.S.C. § 1681(a), the legislative history of § 1694a(b), and prior decisions concerning the authority of state and territorial governments); World Communications Corp. v. Micronesian Telecommunications Corp. 456 F.Supp. 1122, 1124-1125 (D.Haw. 1978) (construing 28 U.S.C. § 1352 in light of prior judicial decisions interpreting § 1332); cf. Melong v. Micronesian Claims Commission, 569 F. 2d 630, 632-634 (D.C. Cir. 1977); Ralpho v. Bell, 569 F.2d at 616-628 (construing the Micronesian Claims Act in light of the Act's purposes, its'legislative history, the interpretation of analogous statutory provisions, and the Trusteeship Agreement's human rights guarantees). But see Thompson v. Kleppe, 424 F.Supp. at 1265 (concluding without analysis that the Trust Territory is not a "State or Territory" under 42 U.S.C. § 1983).
Cf. Hooven & Allison Co. v. Evatt, 324 U.S. 652, 692-693, 65 S.Ct. 870, 889-890, 89 L.Ed. 1252, reh. denied 325 U.S. 892, 65 S.Ct. 1198, 89 L.Ed. 2004 (1945) (Murphy, J., concurring in part) (uging the adoption of the construction of Article I, Section 10, Clause 2 of the Constitution which best serves the United States' policy and legal obligation to move the post-war Philippines to independence and national reconstruction). See also Green, The Applicability of American Laws to Overseas Areas Controlled by the United States, 68 Harv.L.Rev. 781, 803 (1955) (suggesting the inapplicability of federal legislation which conflicts with United Nations Charter obligations to the Trust Territory's inhabitants).
Although the contemporaneous remarks of a single legislator or a bill s sponsor are not controlling [Consumer Product Safety Commission v. GTE Sylvania Inc., 447 U.S. 102, 118, 100 S.Ct. 2051, 2061, 64 L.Ed.2d 766 (1980)], a floor's manager statements are entitled to weight. In re Grand Jury Investigation of Cuisinarts Inc., 665 F.2d 24, 34 (2d Cir. 1981) . This is especially true where, as here, the statements reflect the views of a committee. Cf. note 40, supra.
See generally Cincinnati Soap Co. v. United States, 301 U.S. 308, 314, 57 S.Ct. 764, 81 L.Ed. 1122 (1937)("the possession of this well-nigh absolute power over a dependent people carries with it great obligations... '[T]he obligations correlative to this great power are of the highest character and... it is our unquestioned duty to make the interests of the people over whom we assert sovereignty the first and controlling consideration in all legislation and administration which concerns them...' (citation omitted)"; Reavis v. Fianza, 215 U.S. 16, 22-23, 30 S.Ct. 1, 2, 54 L.Ed 73 (1909)(stating that a provision in the Philippine Organic Act must be "supposed to have had in view the natives of the islands, and to have intended to do liberal justice to them"). Cariño v. Insular Government of the Philippine Islands, 212 U.S. 449, 458-460, 29 S.Ct. 334, 336, 53 L.Ed. 594 (1909) (in resolving ambiguities in Spanish law applicable in the Philippines prior to United States administration, "every presumption is and ought to be be against the government... [and courts] ought to give the... [indigenous people] the benefit of the doubt"); ‘ United States v. Fullard-Leo, 156 F.2d 756, 758 (9th Cir. 1946) (en banc), aff’d 331 U.S. 256, 272 67 S.Ct. 1287, 1294, 91 L.Ed. 1474 (1947)(applying Cariño's principle that legal ambiguities must be resolved in favor of insular people and against the government).
Secretarial Order 2989, 41 Fed.Reg. 15892 (1976), limited the taxing and regulatory authority of the NMI government during the interim between the Covenant's enactment and the inception of the Commonwealth government on January 9, 1978. See Order 2989, Part VII, § 2. When the supervening provisions of the Covenant and the NMI Constitution took effect in .1978, Order 2989 expired by operation of law as well as under its own terms. See Order 2989, Part XIV.
Acting on United States policy in 1970, the High Commissioner had openly discouraged the NMI's initiates for separate status negotiations. See S.Rep. No. 433, supra note 24, at 48. In accordance with his position as an executive branch subordinate, the High Commissioner similarly adhered to United States policy when the NMI's separate status negotiations began in 1972. See House Territorial and Insular Affairs Subcommittee Hearing, supra note 41, at 104 ("When Mr. Johnston, the Commissioner of the trust territories appeared before this committee on another matter within the past month, I enlisted his assurance that the trust territories government would not, nor would he, in any way interfere with the free and unfettered exercise of the view and will of the people of the Northern Marianas")(statement by Representative Philip Burton during a discussion of the Coverfant plebiscite); id. at 116 ("the administering authority, of course, is the United States. The High Commissioner and his staff have taken-no'position on the Marianas status talks")(statement by the President's Personal Representative to the Covenant Negotiations)
Since there is no express Federal statute of limitations for § 1981 claims, the controlling limitations period is "the most appropriate one provided bv state law." Johnson v. Railway Express Agency Inc.. 421 U.S. 454, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295
See generally Anno. Applicability of 42 USCS § 1981 to National Origin Employment Discrimination Cases, 43 A.L.R.Fed. 103.
In Runyon v. McCrary. 427 U.S. 160, 167, 96 S.Ct. 2586, 2592, 49 L.Ed.2d 15 (1976), the Supreme Court stated that § 1981 does not prohibit gender-based discrimination.
The legislative history of § 1981 Indicates that Congress affirmatively decided not to proscribe age-based discrimination. See Ortiz v. Bank of America. 547 F.Supp. 550, 555 (E.D.Cal. 1982)
Runyon v. McCrary indicated that religious discrimination is not actionable under § 1981. 426 U.S. at 167, 96 S.Ct. at 2592.
Defendants have suggested that plaintiffs' § 1983 claims "may" be barred by the applicable state statute of limitations. The Court disagrees for the reasons stated with reference to defendants' statute of limitations challenge to plaintiffs' § 1981 claims. See Part V-B-2, supra.
Covenant § 501(a) states in relevant section:
To the extent that they are not applicable of their own force, the following provisions of the Constitution of the United States will be applicable within the Northern Mariana Islands as if the Northern Mariana Islands were one of the several states... Amendments 1 through 9, inclusive;... Amendment 14, section 1;... (emphasis added).
Balzac v. Puerto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627 (1922); Ocampo v. United States, 234 U.S. 91, 34 S.Ct. 712, 58 L.Ed. 1231 (1914); Dowdell v. United States, 221 U.S. 325, 31 S.Ct. 590, 55 L.Ed. 753 (1911); Dorr v. United States, 195 U.S. 138, 24 S.Ct. 808, 49 L.Ed. 128 (1904); Hawaii v. Mankichi, 190 U.S. 197, 23 S.Ct. 787, 47 L.Ed. 106 (1903); Fourteen Diamond Rings v. United States, 183 U.S. 176, 22 S.Ct. 59 L.Ed. 138 (1901); Dooley v. United States, 183 U.S. 151, 22 S.Ct. 62, 46 L.Ed. 128 (1901); Huus v. N.Y. & P.R. Steamship Co., 182 U.S. 392, 21 S.Ct. 827, 45 L.Ed. 1146 (1901); Downes v. Bllwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088 (1901); Armstrong v. United States, 182 U.S. 243, 21 S.Ct. 827, 45 L.Ed. 1086 (1901); Dooley v. United States. 182 U.S. 222, 21 S.Ct. 762, 45 L.Ed. 1074 (1901); DeLima v. Bidwell, 182 U.S. 1, 21 S.Ct. 743 45 L.Ed. 1041 (1901). See also Rassmuset v. United States, 197 U.S. 516, 25 S.Ct. 514, 45 L.Ed 820 (1905) (recognizing the applicability of the Sixth Amendment jury trial right in the continental "incorporated" territory of Alaska).
'"Incorporated territories” are territories which are "in all respects a part of the United States" [Downes v. Bidwell, 182 U.S. at 311, 21 S.Ct. at 796 (White, Shiras and McKenna, J.J., concurring)] and "destined for statehood from the time of acquisition." Flores de Otero, 426 U.S. 599 n.30, 96 S.Ct. at 2280 n. 30.
"Unincorporated territories" are ambiguously defined as territories which are not "an integral part of the United States" [Downes v. Bidwell, 182 U.S. at 312, 21 S.Ct. at 796 (White, Shiras and McKenna, J.J., concurring)], and which the United States acquires without the objective of annexing them into the Union as states. Flores de Otero, 426 U.S. at 599 n.30, 96 S.Ct. at 2280 n. 30.
Because due process and equal protection apply of their own force, Covenant § 502(a)'s reference to those guarantees merely declares rights which already inherently exist. Cf. Rassmussen v. United States, 197 U.S. at 526, 25 S.Ct. at 518 (stating the same conclusion as to legislation purporting to "apply" the Fifth, Sixth and Seventh Amendments to incorporated territories).
See also Sechelong v. Trust Territory of the Pacific Islands, 2 T.T.R. 526, 528-529 (H.C.Tr.Div. 1964) (citing Balzac and treating the Trust Territory as an unincorporated territory rn ruling implicitly that the Seventh Amendment right to jury trial in civil cases does not apply of its own force in the Trust Territory). Compare Sonoda v. Trust Territory of the Pacific Islands, 7 T.T.R. 442, 444-445 (H.C.App.Div. 1976)(relying upon Sechelong in rejecting the availability of the Sixth Amendment right to jury trial in criminal cases).
The essential description of an "unincorporated territory" encompasses the Trust Territory in that the Trust Territory is neither an integral part of the United States nor destined for statehood. See note 119, supra. Moreover, like the territories in the Insular Cases, the Trust Territory entered United States control "in a condition of temporary pupilage or dependence." Dorr, 195 U.S. at 148, 24 S.Ct. at 812 (citation omitted).
See also Castro v. United States. 500 F.2d 436, 437, 448 (Ct.Cl. 1974); Camacho v. United States, 494 F.2d 1363, 1368-1369 (Ct.Cl. 1974); Fleming v. United States, 352 F.2d 533, 534 (Ct.Cl. 1965)(applying or assuming the applicability of the Fifth Amendment's Just Compensation Clause). But see Pauling v. McElroy, 164 F.Supp. 390, 393 (D.D.C. 1958), aff'd 278 F.2d 252, 254 n.3 (D.C.Cir. 1960) cert.denied 364 U.S. 835, 81 S.Ct. 61, 5 L.Ed.2d 60 (1960)(indicating that the Constitution does not protect Micronesian "non-resident aliens"). The District of Columbia has narrowed Pauling by declaring that the decision stands only for the proposition that non-resident aliens lack standing to challenge nuclear testing if they fail to allege a specific threatened injury.
Although the United States is not sovereign in the Trust Territory, it has characterized the Trust Territory-as "under the American flag." See Trusteeship Agreement for the Trust Territorv of the Pacific Islands: Hearing on S.J.Res. 143 Before the United’ States Senate Committee on Foreign Relations, 80th Cong. 1st Sess. 12 (1947)(Senate Foreign Relation Committee Hearing on S.J. Res.. 143) ("the obligations we .take under the. agreement are merely obligations that we would fulfill to any péople under our flag, even apart from the engagements'and covenants in this agreement...") (testimony by Secretary of War Patterson).
Compare Hirota v. MacArthur, 338 U.S. 197, 69 S.Ct. 197 93 L.Ed. 1902 (1949)(per curiam); Standard-Vacuum Oil Co. v. United States, 153 F.Supp. 465 (Ct.Cl. 1957), cert.denied 355 U.S. 893, 78 S.Ct. 266, 2 L.Ed.2d 191 (1957)(denying federal constitutional protection on the ground that action by a United States military officer was not action by the United States where the action was taken in the officer's separate capacity, as an internationally appointed supreme military commander).
The Court has considered and rejected teh possibility taht 979 amendment to § 1983 implicitly.incorporated Kleppe's § 1983 holding. Under the doctrine of "impled reenactment , when Congress reenacts a statute it is presumed to be aware of and adopt the statute's prior judicial construction. Lorillard v. Pons, 434 U.S. 575, 580-581, 98 S.Ct. 866, 870, 55 L.Ed.2d 40 (1978). This principle does not apply to an unappealed district court decision.
The Trusteeship Agreement's congressional legislative history reflects the view of some United States officials that there is no essential difference between the United States' authority in its sovereign territory and its power in the Trust Territory. See, e.g., Senate Foreign Relations Committee Hearing on S.J.Res. 143, supra note 123, at 21-22 ("We are not sovereign there in the sense of having title, but we can exercise all the prerogatives of sovereignty")(testimony by the Chief of the State Department's Dependent Area Affairs Division); id. at 12 ("in this strategic trusteeship the powers of the trustee are extremely broad. We are not subject to the various restrictions that apply to the more ordinary kind of trusteeship")(testimony by Secretary of War Patterson); H.R.Rep.No. 889, 80th Cong. 1st Sess. p.4, reprinted in 1947 U.S. Cong. Serv. 1320 ("[i]n substance, the United States can administer the territory as if it were a colonial possession").
In cases involving injunctive and declaratory relief, the Supreme Court and the Ninth Circuit have indicated that a private right of action under Title VI exists. Lau v. Nichols. 414 U.S. 563, 566, 94 S.Ct. 786, 788, 39 L.Ed.2d 1 (1974) relied upon Title VI in sustaining a private class of action to redress unequal educational opportunities. The plaintiffs did not pray for a specific remedy, and the court remanded for "the fashioning of appropriate relief." Id. at 564, 569, 94 S.Ct. at 787, 790. In an action under 29 U.S.C. § 794, for injunctive and declaratory relief, the Ninth Circuit indicated on the basis of Lau that Title VI affords a private causes of action. King v. County of Los Angeles, 633 F.2d 876, 878 and n.3 (9th Cir. 1980). In Regents of the University of California v. Bakke. 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) four justices assumed that Title VI private actions are available and four justices expressly so concluded. Id. at 283-284, 98 S.Ct. at 2745 (Powell, J.); id. at 328, 98 S.Ct. at 2767 (Brennan, White, Marshall and Blackmun, J.J., concurring in the judgment in part and dissenting in part).
The availability of private Title VI actions for monetary relief is unsettled. In Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), the Supreme Court held that a private right of action exists under Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681). This conclusion rested upon the court’s analysis of the nearly identical language of Title VI and the legislative history of Title IX, which revealed Congress' belief that it had created a private right of action under Title VI. Id. at 694-696, 703, 99 S.Ct. at 1956-1958, 1961. The district court had ruled that monetary relief was unavailable. Cannon v. University of Chicago, 406 F.Supp. 1257, 1259 (N.D.Ill. 1976). The Seventh Circuit affirmed without comment. 559 F.2d 1063 (7th Cir. 1976). The Supreme Court's reversal stated that "petitioner may maintain her lawsuit" and did not question the availability of monetary relief. 441 U.S. at 717, 99 S.Ct. at 1968. On the basis of Cannon, the Second Circuit held that Title VÍ establishes a private right of action for monetary relief. Guardians Association of New York City v. Civil Service Commission 633 F.2d 232, 272-275 (2d Cir. 1980) (Coffrin and Kelleher, Circuit Judges, concurring), cert.granted _ U.S. _, 102 S.Ct. 997, 71 L.Ed.2d 291 (1982). Contra, Id. at 254-257 (Meskill, Circuit Judge, dissenting on the Title Vl monetary relief issue; Boxall v. Sequoia Union High School District, 464 F.Supp. 1104, 1112 (N.D.Cal. 1979) (dictum); Rendon v. Utah State Dept. of Employment Security, 454 F.Supp. 534, 536 and n.2 (D.Utah 1878)
Plaintiffs conspicuously fail to challenge the argument that the provision of employment is not the primary purpose of federal financial assistance to the Trust Territory.
United States v. El Camino Community College District, 454 F.Supp. 825, 829 (C.D.Cal. 1978), aff'd 600 F.2d 1258 (9th Cir. 1979), cert.denied, 444 U.S. 1013, 100 S.Ct. 661, 62 L.Ed. 2d 642 (1980).
See 29 U.S.C. § 794(a)(a).
The Ninth Circuit relied in major part upon Tragesar v. Libbie Rehab. Center Inc., 590 F.2d 87 (4th Cir. 1978). However, its holding significantly omitted Tragesar's additional conclusion that private suits under Title VI also are available where "discrimination in employment necessarily causes discrimination against the primary beneficiaries of the federal aid." Id. at -89, If the Ninth Circuit had incorporated this statement into its Scanlon holding, the Court's ruling here would have been different.
The Court accordingly rejects defendants' argument that 42 U.S.C. §2000e-l renders Title VII inapplicable in the NMI. Section 2000e-l states in relevant part that Title VII is inapplicable "to an employer with respect to the employment of aliens outside any State..." (emphasis added).
Defendants charge that plaintiffs failed to exhaust administrative remedies as required by 42 U.S.C. § 2000e-16. Section 2000e-16 concerns federal government employment. As decided in Part IV-B, supra, the Trust Territory government is administratively distinct from the United States government or its employees are not' ipso facto United States government employees. Therefore, it is unnecessary to consider defendants' § 2Q00e-16 argument. See also Part VI-D, infra.
Citing Espinoza v. Farah Manufacturing Co. Inc., 414 U.S. 86, 94 S.Ct. 334, 38 L.Ed.2d 287 (1973), defendants also contend that Title VII is unavailable to plaintiffs because the Trust Territory government's pay scales discriminate on the basis of alienage, a practice which is'not prohibited by Title VII. Although Espinoza concluded that alienage discrimination does not in intself violate Title VII, it also declared that "Title VII prohibits discriminatioi. on the basis of citizenship whenever it has the purpose or effect of discriminating on the basis of national origin." Id. at 92, 94 S.Ct. at 338. Plaintiffs have alleged both racial and national origin discrimination. See note 8, supra.
Under 42 U.S.C. § 2000-5(g), back pay liability is limited to a two-year period preceding the EEOC filing.
Plaintiffs' Memorandum Opposing Defendants' Original Motions at 8.
Title 42 U.S.C. § 2000e-16 (c); see Fischer v. S. Department of Transportation. 1349, 1351 (D.Mass. 1977).
Title 1 T.T.C. § 7 states:
No law shall be enacted in the Trust Territory which discriminates against any person on account of race, sex, language or religion; nor shall the equal protection of the laws be denied.
The Trust Territory Bill of Rights of which § 7 is part was originally promulgated by the High Commissioner in Interim Regulation 4-48 (1948). See Ichiro v. Bismark. 1 T.T.R. 57, 60 (H.C.Tr.Div. 1953). The High Commissioner reenacted the Bill of Rights in 1952. See Plaintiffs Memorandum Opposing Defendants' Renewed Motions, Exhibit I. The Congress of Micronesia enacted the Bill of Rights in 1966.
Plaintiffs' First Amended Complaint added § 7 claims as Count II. See note 10, supra. The Trust Territory government and the High Commissioner•waived oral argument on the renewed dismissal and summary judgment motions and relied upon their prior arguments against the original Complaint.
Reference
- Full Case Name
- EDWARD TEMENGIL v. TRUST TERRITORY OF THE PACIFIC ISLANDS, JANET McCOY, High Commissioner of the Trust Territory of Pacific Islands, UNITED STATES DEPARTMENT OF THE INTERIOR, JAMES WATT, Secretary of the Interior, and UNITED STATES OF AMERICA
- Status
- Published